Warren Brown

Preliminary Matters

1. The Panel was convened to undertake the substantive hearing of the HCPC’s allegations against the Registrant, Mr Warren Brown, a Physiotherapist.

2. Eight days were allocated for the hearing, although in the event the indisposition of a participant on the first two days resulted in the hearing not commencing until the third day of the hearing, 25 September 2023.

Application by the HCPC to amend Particular 2 of the allegation.

3. The original form of Particular 2 referred only to the Nuffield Health Data Protection Policy in the stem. The Presenting Officer applied to include reference to Nuffield Health’s Standard Operating Procedures on Use of Email, Internet and Social Media, submitting that both documents were relevant to the criticisms advanced by the two limbs sub-particularised under the stem. The HCPC’s application was not opposed by Ms Shah on behalf of the Registrant.

4. The Panel acceded to the HCPC’s application to amend the stem of Particular 2, being satisfied that it was appropriate for reliance to be placed on the additional document and that permitting the amendment would not result in the Registrant being prejudiced. The allegation as it is set out above is in the amended form.

The Registrant’s response to the allegation.

5. When the Registrant was invited to respond to the allegation, Ms Shah indicated his response as follows:

• Particular 1 was admitted.
• All elements of Particular 2 as amended were admitted.
• Both limbs of Particular 3 were admitted.
• Particular 4 was admitted.
• Particular 5 was denied.
• With regard to Particular 6, it was admitted that the Registrant spoke the words (or words to the same effect) as quoted in sub-particulars (i) and (ii), but it would be the Registrant’s contention that the words were not untrue.
• With regard to Particular 7, the Registrant accepted that he had denied knowing Service User 4, accepted that that statement was incorrect, but would contend that at the time he spoke the words, he did not appreciate that what he said was incorrect.
• Particular 8 was admitted.
• The allegation of dishonesty made by Particular 9 was denied.
• With regard to the allegation of misconduct advanced by Particular 10, the Registrant admitted misconduct with regard to those particulars he had admitted.
• Ms Shah stated that no response would be made with regard to the allegation of impairment of fitness to practise; that was an issue for the Panel’s professional judgement.

Deciding the facts before considering any other element of the allegation

6. Before the case was opened, it was decided that it would be desirable for the Panel to reach a decision on the factual particulars, and announce that decision, before any other elements of the case would be considered.

The HCPC’s application to offer no evidence in relation to Particular 5

7. Although it was not a matter dealt with at the commencement of the case, but rather at the start of the second day, after the first witness had given his evidence and before the second witness was due to commence his evidence, it is nevertheless convenient to explain this application at this stage.

8. On behalf of the HCPC, the Presenting Officer applied to offer no evidence in relation to Particular 5. The basis upon which that application was made was that the HCPC considered that there was no reasonable prospect of the factual basis of the particular being proven. In so contending, the Presenting Officer submitted that having seen the actual prescription that is the subject of Particular 5, rather than a copy that had hitherto been available to the HCPC, the complaint made could no longer be sustained. On behalf of the Registrant, Ms Shah agreed that there was no basis on which the particular could be proven, and contended that there was in any event no basis on which it could have been advanced.

9. The Panel approached the matter on the basis that the public interest required it to be satisfied that the HCPC was correct in contending that there was no reasonable prospect of the matter being proven. Were the Panel to conclude that a reasonable prospect of proving the particular existed, it could require the HCPC to maintain the case in respect of it. However, having carefully considered the matter, the Panel was of the clear view that the HCPC’s position was correct and there was no prospect of Particular 5 being established.

Background

10. The Registrant qualified as a Physiotherapist in 2002. Thereafter he practised as a Physiotherapist in a number of roles, including NHS hospitals and work on a locum basis. He commenced work for Nuffield Health in 2014. In 2020, the Registrant was employed by Nuffield Health for one day a week as an Injection Therapist and the National Clinical Lead for Nuffield Health’s Injection Therapy Service. In addition to the one day a week he worked for Nuffield Health, the Registrant undertook other ad hoc work to the knowledge of Nuffield Health.

11. At the beginning of March 2020, Nuffield Health put on hold the offering of Injection Therapy, and the Registrant was informed of this fact as will be further described below. This decision was unrelated to the brewing Covid-19 pandemic but was rather the consequence of a risk management assessment occasioned by the appointment of a new Chief Pharmacist who was to review policies and procedures around drug management.

12. The Registrant was subsequently put on furlough. On 11 May 2020, a letter was sent to the Registrant informing him of that fact.

13. An investigation by Nuffield Health into the Registrant’s activities following the pausing of the injection service and since he was put on furlough was triggered in late September 2020 when an email from a customer was received which was understood to be requesting a refund for an appointment they were unable to attend.

14. The investigation that followed gave rise to allegations that are sufficiently described by the factual Particulars 1 to 7 inclusive. In addition to these matters the HCPC alleges that the Registrant did not himself disclose to the HCPC that he had been suspended by Nuffield Health on 8 October 2020, and that the actions alleged by Particulars 3, 6, 7 and 8 represented dishonest behaviour on the part of the Registrant.

Decision on Facts

15. The Panel approached the decision on the facts by accepting that it is for the HCPC to prove matters on the balance of probabilities. The Panel had regard to the admissions made by Registrant, but it did not find matters proved on the basis of those admissions; rather, it had regard to the totality of the evidence in reaching its decisions.

16.The HCPC called two witnesses to give live evidence before the Panel,and each of them made a statement for the purposes of the present proceedings. These witnesses were:

•MH. MH joined Nuffield Health and at the time relevant to the allegations in this case, he was the line manager of the three clinical specialist leads. He became the Registrant’s line manager at about the beginning of February 2020.
•CD, who at the time was employed by Nuffield Health as a Clinical Development Specialist for Physiotherapy. CH undertook the Nuffield Health’s investigation into the matters related to the allegation being considered by the Panel, but that apart he had very little interaction with the Registrant.

17.In addition to the evidence of MH and CD, the HCPC relied upon a witness statement made by H-JK, an HCPC Case Manager whose evidence was directed to the allegation advanced by Particular 8. Furthermore, the HCPC produced a bundle of documentary exhibits extending to approximately 300 pages.

18.The Registrant gave evidence before the Panel, and produced a detailed witness statement dated 24 September 2023. He also produced a witness statement made by DM, the manager of the GP Practice at which he has worked since the events being considered by the Panel. The Registrant also produced a separate bundle of appendices, including character testimonials.

19.To ensure that the length of the written determination is of a manageable length, extensive references to the evidence have been avoided. It shouldnot be thought, however, that the absence of references to evidence represents a failure to consider it; the Panel confirms that it has had regard to the totality of the evidence, both oral and written, in reaching its decisions.

Particular 1 - Between 20 May 2020 and 05 October 2020, you breached furlough rules, in that you continued to access and action emails though your Nuffield Health email account whilst on furlough.

20.The Registrant was placed on furlough on 8 May 2020 and an email was sent to him informing him of that fact on 11 May 2020. He was allowed four days to indicate that he did not accept the change in his employment status. The Registrant confirmed in evidence that he did not communicate an unwillingness to be furloughed. Included in the furlough rules was a requirement not to undertake any work for Nuffield Health, and this included accessing and actioning Nuffield Health emails. In evidence before the Panel, the Registrant stated that he did not immediately understand the requirements associated with being furloughed, but the Panel is satisfied that from 1 June 2020, he did know that he should not be using his Nuffield Health email account, as on that day he was sent an email warning him not to do so. On 29 June 2020, the Registrant wrote an email (from his Nuffield Health email address) referring to having been “told off” for checking emails. Between 20 May 2020, and 1 October 2020, the Registrant sent no fewer than 23 emails, including the email sent on 23 July 2020 to 136 addressees to which further reference will be made below.

21.As already recorded, the Registrant admitted this particular. The Panel is satisfied that his admission was appropriately made, and Particular 1 is proven.

Particular 2 - Between 23 July 2020 and 05 October 2020, you breached the Nuffield Health Data Protection Policy and/or Standard Operating Procedures on Use of Email, Internet and Social Media, in that;

a.On 27 August 2020, you sent an email to Service User 1 who was not referred through Nuffield Health, regarding an ergonomic assessment;

b.You misused customer data for your own personal gain by;

i.Contacting Nuffield Health customers to offer Injection Therapy privately,

ii.Sending booking confirmation emails to Nuffield Health customers,

iii.Providing Injection Therapy privately to Nuffield Health customers.

22.The Panel was provided with both the Nuffield Health Data Protection Policy and the Standard Operating Department Procedure on Use of Email, Internet and Social Media.

23.On 27 August 2020, the Registrant sent an email from his Nuffield Health email address to an individual the Registrant described in evidence as a friend, and who had approached the Registrant as a friend and not through Nuffield Health. The email concerned an ergonomic assessment, and the Registrant signed it as “Advanced Level Physiotherapist/Clinical Lead Injection Therapy”. The Panel is satisfied that the sending of this email breached the Standard Operating Procedure because it involved the Registrant expressing an opinion in his personal capacity, and not indicating in the email that it was his personal opinion, and not that of Nuffield Health. The Registrant admitted this particular. For this reason, Particular 2(a) is proven.

24. So far as Particular 2(b) is concerned, the Registrant contacted customers whose data (i.e. their contact details) was held by Nuffield Health, for his own purposes. The contact was made by an email dated 23 July 2020 which was sent to a total of 136 Nuffield Health customers. The contents of that email will be further described when the Panel explains its decision in relation to Particular 3, but it is sufficient for present purposes to record that it was sent by the Registrant from his Nuffield Health email address, was signed by him as “Clinical Lead Injection Therapy”, and had two attachments, namely a Nuffield Health Injection Leaflet and an Injection query Proforma. It was not, however, offering a Nuffield Health Service, as injection therapy had been suspended by that company.

25. A total of nine customers were provided with injection therapy as a result of the sending of the email dated 23 July 2020.

26. There was no indication that the customers contacted consented to the data held by Nuffield Health being used by the Registrant for a non-Nuffield Health purpose. The use of the data therefore contravened the Data Protection Policy.

27. The Panel is satisfied that each of the three activities identified under Particular 2(b), namely offering injection therapy, sending booking confirmation and providing the injection therapy, involved misusing the customer data held by Nuffield Health. The Registrant admitted this particular. Accordingly, each limb of Particular 2(b) is proven.

Particular 3 - Between 23 July 2020 and 05 October 2020, you misled Service Users, in that;

a. You misrepresented that treatment was being conducted by Nuffield Health,

b. You misrepresented that treatment was being conducted under the governance of Nuffield Health.

28. The Panel acknowledged that there are two limbs to Particular 3. It is possible to imagine circumstances in which treatment could be offered by a body but not under the governance of that same body. However, given the factual circumstances of this case, the Panel concluded that there was no distinction of substance between the conducting and governance that warranted the two sub-particulars being considered separately.

29. The Panel considers that it is necessary to set out the body of the email sent by the Registrant to 136 customers on 23 July 2020. It has already been stated that it was sent from the Registrant’s Nuffield Health email address, included a Nuffield Health logo and included two Nuffield Health attachments. The body of the email read as follows:

“I hope you are all safe and healthy during this very difficult time.

I am aware that many of you have enquired regarding Injection therapy. Obviously we have not been able to offer this service due to covid-19 restrictions, but with these starting to be relaxed we are looking to restart services in the near future. Nuffield health is working on a phased roll out of opening up gyms etc. but as yet they have not opened up the Manchester location (this is due to local issues surrounding social distancing and admission)

I have been offered the opportunity to use a private clinic in Preston postcode [redacted] to perform an injection therapy clinic. This is a small isolated clinic where social distancing rules are easier to apply and full PPE can be used.

It is a very limited slot for me to use and I appreciate the location is not ideal for everybody but l wanted to offer this to people who may be willing to travel for an injection.

The price remains at £99 per injection.

Before I can commit to a date I need to gauge the number of interested people so I can reserve the clinic and get it prepared.

It would be on a THURSDAY only. Appointments starting from 08.00 until 16.00

If you are interested in this opportunity please could you complete the attached Proforma (I appreciate some of you have done this already but some time has passed since these were first submitted)

If I have enough interest I will reply with the date and get an appointment booked for you. It will be first come first served and I will try and offer an extra date if the uptake is adequate

I look forward to hearing from you (my "Out of Office is on but I will reply").”

30. In the judgment of the Panel this wording represented that the treatment was being offered by Nuffield Health. That representation was inaccurate, and was thus a misrepresentation. The Registrant admitted this particular, and the Panel found both limbs to be proven.

31. Particular 3 is one of the particulars included in the allegation of dishonesty, and therefore the Panel considers that it is appropriate to decide at this stage what the Registrant’s motivation was in sending the email. It was submitted on behalf of the Registrant that on a true and fair reading of the email, whereas it was misleading, there is information from which it can be seen that the misleading effect of it was unintentional, and that the Registrant intended it to be known that the injection therapy was being offered outwith the auspices of Nuffield Health. On behalf of the HCPC, the Presenting Officer submitted that the email was demonstrably sent with the intention of leading the recipients of it to believe that they were being offered a Nuffield Health service.

32. Having carefully considered the matter, the Panel concluded that the email of 23 July 2020, was sent by the Registrant with the intention that it would mislead the recipients into believing that the service was being offered by Nuffield Health. Quite apart from the sending of an email from a Nuffield Health email address, the wording of the second paragraph suggests that the cessation of Nuffield Health injection therapy was connected to Covid-19 restrictions. In fact, as has already been explained, Nuffield Health’s decision to suspend injection therapy was wholly unconnected to Covid-19 or restrictions imposed by the pandemic. There would have been no reason why the Registrant could not have worded the email by stating that Nuffield Health had suspended the service, but that he (i.e. the Registrant) was now able to offer private injection therapy as restrictions were easing. The wording he chose had the effect of suggesting a false reason injection therapy had not been available. The Panel is unpersuaded that the use of the word “I” in the email indicated that it was a service the Registrant was offering privately; a corporate body such as Nuffield Health could obviously not administer an injection both to make the arrangements and administer the injections.

Particular 4 - Between 23 July 2020 and 08 October 2020, you continued to carry out activities relating to the Nuffield health Injection Therapy service in spite of the service being suspended on 01 March 2020.

33. On 2 March 2020, MH wrote an email to the Registrant in which was included the following words, “Just wanted to give you an update on the decision about Injection Therapy at Nuffield Health. Due to the lack of a PGD Policy … we have stopped the delivery of injection Therapy across Nuffield Health with immediate effect.” That the Registrant received this email is demonstrated by the fact that on 4 March 2020, he replied to MH in which the words, “So just a complete stop with no other alternative” appeared.

34. Thereafter the Registrant continued to carry out activities relating to the Nuffield Health Injection Therapy Service. On 23 July 2020, he replied positively to a request from a colleague for supervision in administering injections, and on the same day he sent an email to the Medicines and Healthcare Products Regulatory Authority with a query about Patient Group Directives for Injection Therapy. In this latter email the Registrant asked questions about what both he and his team should be permitted to do with regard to injections.

35. The Registrant admitted this particular, and the Panel finds it proven.

Particular 6 - On 21 October 2020 during an investigatory meeting, you made the following statements which were untrue;

i. ‘I haven’t completed ergonomic assessments for Nuffield for many years’, or words to that effect,
ii. ‘I have not performed ergonomic assessments for anyone’, or words to that effect.

36. The Panel was provided with a copy of a written summary of the investigatory meeting conducted by telephone on 21 October 2020. It has not been suggested that the summary contains any material inaccuracies. It is necessary to reproduce the section of the interview conducted on 21 October 2020, to understand the context of the questions and the Registrant’s replies that are relevant to this particular:

Question - Do you know the patient [name redacted]?
Answer - No.
Question – It appears on the 27 August you completed an ergonomic assessment for this individual, do you remember this?
Answer - This is new evidence so I haven’t seen sight of this have I.
Question - Do you recall this?
Answer - I haven’t completed ergonomic assessments for Nuffield for many years
Question - Have you done it privately, outside of Nuffield Health?
Answer – I have not performed ergonomic assessments for anyone. I have been in more of an advisory role with Nuffield.

37.With regard to Particular 6(i), the Registrant admitted that he spoke the words reproduced in the allegation. It is his case that what he said was true, as for some years he had been Nuffield Health’s Injection Therapy Clinical Lead, and whilst he had held that role, he had not undertaken any ergonomic assessments for Nuffield Heath. On the basis of all the evidence the Panel received, it concluded that what the Registrant said in the interview was correct. Accordingly, Particular 6(i) is not proven, as the stem allegation that it was untrue is not established.

38.With regard to Particular 6(ii), again, the Registrant admitted speaking the words quoted in the allegation. The Registrant denied that they were untrue on the basis that he believed that the question related to ergonomic assessments for Nuffield Health.

39.The Panel accepts that the Registrant was not informed of the questions he was to be asked in advance of the interview, and, as is apparent from the exchanges quoted, the Registrant was not provided with a great deal of detail as the interview progressed. However, the name that the Panel has redacted in the first question quoted is the name of the Registrant’s friend for whom he undertook the ergonomic assessment on 27 August 2020 that is referred to in Particular 2(a). The Panel believes that the very fact that the Registrant’s role at Nuffield Health did not involve him performing ergonomic assessments would have the consequence that the ergonomic assessment he did undertake purportedly under the Nuffield Health umbrella, and changing his job description under his signature, less than eight weeks earlier, would stand out in his memory. Accordingly, the Panel finds that the denial given to the specific question whether he had undertaken a private ergonomic assessment was made knowing it to be false. Particular 6(ii) is proven on that basis.

Particular 7 - On 21 October 2020 during an investigatory meeting, you falsely denied knowing Service User 4.

40. In relation to Particular 7, the Registrant admitted that he denied knowing Service User 4, but that admission was made on the basis that he had not appreciated who Service User 4 was when he uttered his denial in the telephone interview on 21 October 2020.

41. The evidence available to the Panel is that the knowledge that the Registrant could have had of Service User 4 was that he was the person being treated by Person 4, and the person in respect of whom the prescription was written on 3 August 2020. In that sense, it might be said that the Registrant had known of Service User 4. In the context of an allegation of misconduct, the Panel has construed the term “falsely denied” as meaning that there was a denial of knowledge of Service User 4 which was in some sense culpable. Applying this construction, the Panel has come to the conclusion that the HCPC has failed to discharge the burden of proving that the Registrant’s denial was anything other than a mistake on his part.

42. Accordingly, the Panel finds Particular 7 to be not proven.

Particular 8 - You did not inform the HCPC that you had been suspended by Nuffield Health on 08 October 2020.

43. The current version of the HCPC’s Standards of conduct, performance and ethics came into force on 26 January 2016. The heading of standard 9 is “Be honest and trustworthy”. A sub-heading within standard 9 is “Important information about your conduct and competence”, and, under this sub-heading, standard 9.5, provides as follows: “You must tell us as soon as possible if … you have any restriction placed on your practice, or been suspended or dismissed by an employer, because of concerns about your conduct or competence.”

44. The Registrant was suspended by Nuffield Health at the conclusion of an investigation interview on 8 October 2020, and that decision was confirmed in a letter sent to the Registrant by Nuffield Health on 9 October 2020.

45. The Registrant admitted this particular. The evidence of H-JK is that the Registrant did not inform the HCPC that he had been suspended by Nuffield health. The Panel finds that the Registrant did not notify the HCPC and that his admission was appropriately made. Particular 8 is proven.

46. As Particular 8 is one of the particulars included in the allegation of dishonesty, the Panel went on to decide the circumstances surrounding the Registrant’s failure to disclose to the HCPC his suspension by Nuffield Health.

47.In his witness statement, after asserting that he genuinely did not know he was required to report the suspension during the “investigation” part of the process, the Registrant stated this in paragraph 109, “I believe my confusion arose from the section within the HCPC Code of Conduct saying, “Employees can continue to practise whilst we investigate a matter unless we have imposed an interim Order of their registration.” It was put to the Registrant by the Presenting Officer in cross-examination, and not challenged by or on behalf of the Registrant, that the document described in this passage as the Code of Conduct was in fact a document directed towards employers and managers. In the judgement of the Panel the terms of standard 9.5 are clear and unambiguous. In failing to discharge the requirement to self-refer, the Panel has concluded that the Registrant was seeking to avoid the risk of regulatory involvement. In reaching this conclusion, the Panel has not overlooked the fact that he informed DM of the GP Practice of Nuffield Health’s actions, but that fact does not negate the conclusion the Panel has reached.

Particular 9 - Your conduct in relation to particulars 3, 6, 7 and/or 8 above were dishonest.

48.The Panel should explain two matters in relation to the approach it took towards its decision on dishonesty:

•First, it was a fact to be decided by reference to the burden and standard of proof, and considered separately in relation to those of the preceding proven factual particulars that were alleged to have been dishonest. These particulars were 3(a) & (b), 6(ii) and 8.

•To decide if these proven factual particulars were dishonest, the Panel applied the findings already described as to the Registrant’s subjective intentions with regard to them, and then asked itself the question whether, by the objective standards of ordinary decent people, the actions would be considered to be dishonest.

49.As just stated, the Panel considered the matter separately with regard to the relevant proven particulars. The conclusion of the Panel was that ordinary decent people would consider it to have been dishonest to:

•deliberately misrepresent to service users that a treatment not being offered by Nuffield Health, was in fact being offered by that company (Particulars 3(a) & (b);

• knowingly falsely deny undertaking an ergonomic assessment (particular 6(ii);

• fail to disclose to the HCPC a suspension from employment in the knowledge that it should be disclosed with the intention of avoiding the involvement of the professional regulator.

50. For these reasons the allegation of dishonesty is proven.

Submissions on Misconduct and Impairment of Fitness to Practise.

51. After the Panel handed down its written determination explaining its decision on the facts, it allowed the parties time to consider the document. The Panel indicated that it would receive submissions on both misconduct and impairment, confirming that those issues would be considered separately and sequentially.

52. The Presenting Officer reminded the Panel of the approach that had been taken to the meaning of the word “misconduct” in the cases of Roylance and Nandi. He also identified particular standards within the HCPC’s Standards of conduct, performance and ethics that he submitted had been breached by the Registrant, identifying which factual particular engaged which breach. He submitted that the seriousness of the matters found to be proven by the Panel should lead to a finding of misconduct, particularly as dishonesty had been established. He submitted there was no feature of the Registrant’s dishonesty that should lead to any conclusion other than that it represented misconduct. In relation to impairment of fitness to practise, the Presenting Officer submitted that a finding of current impairment should be made in relation to both the personal and public components. As to the former component, he referred to the fact that there had been no admission of dishonesty, and that even if the Registrant accepted dishonesty following receipt of the Panel’s determination on the facts, such acceptance would be so late in the day it would necessarily give rise to a risk of repetition. With regard to the public component, he submitted a finding of current impairment would be required to uphold proper professional standards.

53. After the Presenting Officer made his submissions on misconduct and impairment of fitness to practise, the Registrant was allowed further time to consider matters.

54. Before Ms Shah made her submissions, the Registrant gave further evidence under affirmation. The Panel will not provide a lengthy summary of the Registrant’s evidence, but rather will highlight some of the more important aspects of it. The Registrant repeated the apology he had earlier expressed for his actions. When asked what his attitude was towards the Panel’s findings on the facts, he stated that he appreciated why the Panel had come to the decision it had in relation to dishonesty. He stated that he understood why honesty is regarded as a fundamental requirement of a health professional; without honesty there could not be the required relationship between the health professional and the service user. He accepted that in treating service users who had been misled as to the capacity in which he was acting, he had created a situation where, apart from a lack of informed consent, there was a loss of faith and trust. He acknowledged that his actions had undermined his profession, his colleagues were affected by his actions, and Nuffield Health would suffer reputational damage. When asked by Ms Shah to state what his response was to the Panel’s finding in relation to Particular 6(ii), the Registrant acknowledged that his attitude in the internal Nuffield Health investigation had not been to co-operate, but rather to be somewhat obstructive. So far as reporting matters to the HCPC is concerned, he acknowledged that the HCPC can only discharge its overarching responsibility to protect the public if it is provided with the information it needs for that purpose. As to why he acted as he did, the Registrant said that at the time he had not felt as if he was in control, that he was protecting himself. He also acknowledged that he had a financial motive. The Registrant informed the Panel that since these events he has undertaken coaching to address behavioural and decision-making issues, and the Panel was provided with a recent note from the person with whom he has undertaken that coaching.

55.Following the Registrant’s evidence, Ms Shah made submissions to the Panel. She explicitly accepted that the HCPC Standards that had beencanvassed were applicable and had been breached. She also accepted that the proven facts amounted to misconduct. In relation to impairment of fitness to practise, she acknowledged that the Panel would be likely to decide that a finding of impairment would be required in respect of the public component so as to declare proper professional standards. The substance of her submissions was directed to the personal component of impairment of fitness to practise, and, in that regard, she submitted that there were factors that could lead the Panel properly to conclude that the Registrant’s fitness to practise was not impaired. She urged the Panel totake the view that it was important to consider the context in which the failings occurred, particularly that they coincided with the early stages of the Covid-19 pandemic, with the stresses and anxieties that were prevalent at that time. She did not submit that the context excused the Registrant’s behaviour, but she did submit that it served to explain why the matters occurred. She submitted that the Registrant is a practitioner who is a competent and dedicated individual, and one who is passionate about his profession, had behaved inappropriately and out of character. She relied upon the Registrant’s previous good character and the substantial body of positive testimonial evidence, which included positive views about his honesty. These factors, she submitted, taken together with the insight he had demonstrated, could properly be viewed as factors that would mean that there would be no risk of repetition. Consistent with these submissions, she submitted that the Panel should find that, with regard to the personal component, the Registrant’s fitness to practise is not impaired.

Decision on Misconduct

56.The Panel began its deliberations on misconduct by considering whether the Registrant’s actions had amounted to breaches of the HCPC’s Standards of conduct, performance and ethics. The conclusion of the Panel was that the following standards were breached:

•Standard 3.4, by not complying with Nuffield Health requirements and by not observing the requirements imposed on him as a result of being furloughed.

•Standards 5.1 and 5.2. The actions reflected in Particular 2 demonstrated that the Registrant did not treat information about service users as confidential, and he did not have the permission of the service users who were emailed to do so for his own purposes.

•Standard 9.1. The findings of fact generally, but particularly the finding of dishonesty, are such that the public’s trust in the Registrant would be compromised, and he jeopardised the public’s trust in his profession.

•Standard 9.3. The communications referred to in relation to particular 3 were not accurate and were likely to mislead.

•Standard 9.4. The Registrant did not declare issues (namely his communication with Nuffield Health customers) that represented a clear conflict of interest between his personal interests and those of his employer.

•Standard 9.5. The failure to inform the HCPC of his suspension is the basis of the Panel’s finding in relation to Particular 8.

57. The Panel acknowledged that a finding of misconduct does not automatically follow a finding that HCPC Standards have been breached; what is required is an assessment of the seriousness of the breaches.

58. When the Panel considered the seriousness of the shortcomings that were encompassed by the factual findings, the Panel found that individually and collectively, the proven particulars were sufficiently grave to warrant a finding of misconduct. They were shortcomings that fell very far short of the behaviour to be expected of a health professional, and fellow professionals would regard the Registrant’s behaviour to have been deplorable.

59. The finding of misconduct meant that the Panel then went on to consider impairment of fitness to practise.

Decision on Impairment of Fitness to Practise

60. In reaching its decisions on impairment of fitness to practise, the Panel kept in mind that the question to be answered is whether the Registrant’s past misconduct is currently impairing his fitness to practise. The Panel followed the guidance provided by the HCPTS Practice Note entitled, “Fitness to Practise Impairment”, and, accordingly, considered both the personal and public components.

61. The Panel accepted the positive testimonial evidence that was presented on behalf of the Registrant. No previous findings have been made against the Registrant. Even though this case is not one concerning clinical shortcomings, it is nevertheless fair to acknowledge that the Registrant has had a lengthy career as a Physiotherapist, and that he is held in high regard by other Physiotherapists alongside whom he has worked or whom he has trained. It was apparent that he is passionate about his career as a Physiotherapist. The Panel also acknowledged that between March 2023, and June 2023, the Registrant undertook CPD courses in Clinical Governance, Consent, Safeguarding Adults and Data Security Awareness.

62. When the Panel considered whether the breaches established in this case are remediable, the Panel acknowledged that dishonesty is a matter that it is difficult to remedy; unlike a clinical competence issue, where a refresher course can address a skills shortfall, a finding of dishonesty necessarily involves an identification of an attitudinal deficit. A dishonest act, once done, cannot be undone. That does not mean, however, that a Panel is deprived of the ability to assess whether a repetition of dishonest conduct is likely to be repeated. An important element of the assessment of the risk of repetition is the extent to which a person acknowledges that they performed the actions which were dishonest, and the extent to which they acknowledge that those actions should not have occurred. If a person does not acknowledge that they performed a dishonest act, or, if they acknowledge the action, but do not recognise that it was wrong, there can be little confidence that they would not behave in a similar manner in the future.

63.The admissions made by the Registrant at the commencement of the case have already been recorded. The Registrant’s admission included an acceptance that he had breached furlough rules, breached Nuffield Health policies and misled service users. It follows from this that the Registrant had by that stage already achieved a significant degree of insight into his inappropriate behaviour. However, at the same time, there were factors that suggested that the Registrant had chosen to view matters from a perspective that suited how he would have liked matters to have been, rather than how they actually were. Two examples will suffice. One is his denial in both the Nuffield Health investigation and at this hearing that he had performed an ergonomic assessment (Particular 6(ii)). The other is his reliance on an obscure piece of advice tendered by the HCPC to employers rather than the crystal-clear requirements imposed on Registrants by the Standards of conduct, performance and ethics. The evidence given by the Registrant at the present stage of the hearing that he could now understand that his attitude in the Nuffield Health investigation was obstructive demonstrates that the Registrant is still working towards full insight into his actions.

64.The Panel does not believe there to be any reason why the Registrant could not achieve full insight, albeit that at present his insight is not complete. The fact that the Registrant’s insight is incomplete translates into there being some residual risk that he will repeat dishonest behaviour. For that reason, the Panel considers that it is necessary to find that his fitness to practise is impaired on the personal component.

65.When the Panel turned to consider the public component, it addressed the three elements identified in section 5.2 of the Practice Note, namely:

•the need to protect service users;

•maintaining professional standards; and,

•maintaining public confidence in the Physiotherapy profession.

66. So far as protecting service users is concerned, the Panel has already stated that there is some residual risk of a repetition of dishonest behaviour. However, the seriousness of the past misconduct was not the risk of tangible physical harm to service users; rather, the seriousness of the Registrant’s behaviour lay in the fundamental incompatibility of professional practice and dishonesty. Looking forward, the Panel considered that the factors that demanded a finding of public component impairment of fitness to practise were the need to declare and uphold proper professional standards (and thereby deter other professionals who might otherwise feel tempted to stray) and the maintenance of confidence in the profession by members of the public who would justifiably expect that their health professionals would not behave dishonestly (even if they were not at significant risk of being caused physical harm by dishonest behaviour).

67. The conclusion of the Panel was that a finding of current impairment of fitness to practise is required in relation to both the personal and public components. The consequence of that finding is that the allegation is well founded, and the Panel must proceed to consider the issue of sanction.

Decision on Sanction

68. After the Panel handed down its decision on misconduct and impairment of fitness to practise, the parties were allowed time to consider the document before making their submissions on sanction.

69. On behalf of the HCPC, the Presenting Officer reminded the Panel of the proper purpose of a sanction as it appears in the HCPC’s Sanctions Policy, and submitted that a sanction should be the least restrictive response that is appropriate to the findings made. He submitted that there were aggravating factors (which the Panel will describe in its decision), and that the case should be treated as a serious one, and directed the Panel to the passages in the Sanctions Policy where cases of dishonesty, and those involving abuse of professional position are identified. The Presenting Officer did not make a positive submission as to the sanction to be applied, but he did take the Panel to the relevant passages in the Sanctions Policy where the suggested factors relevant to the different sanctions are described. Finally, the Presenting Officer reminded the Panel of the need to ensure that any sanction imposed represented a proportionate response.

70. On behalf of the Registrant, Ms Shah identified as mitigating factors those matters which the Panel has agreed it is appropriate to consider in favour of the Registrant. She submitted that the residual risk of repetition identified by the Panel was not linked to a significant risk of physical harm, and that there exists a likelihood that the Registrant will be able to remedy and resolve issues fully. In all the circumstances, she submitted that it would be appropriate to impose a suspension order. To go beyond a suspension order, and make a striking off order would be, in the submission of Ms Shah, to act disproportionately, not least because it would deprive society of the services of a competent practitioner.

71. The Panel accepted the advice it received as to the proper approach to considering the issue of sanction, and it heeded the guidance contained in the HCPC’s Sanctions Policy. Accordingly, the Panel first considered whether the findings it had made required the imposition of any sanction. If it concluded that a sanction is required, then the available sanctions needed to be considered in an ascending order of gravity, until one that is appropriate is reached. If that sanction is not the gravest sanction available, whether it is indeed appropriate should be tested by the Panel satisfying itself that it is not necessary to move to the next sanction. Any sanction imposed must represent a proportionate response, balancing the factors requiring the imposition of a sanction against the Registrant’s entitlement not to be restricted save to the extent that the circumstances require. As the finding in the present case is one of misconduct, the entire sanction range up to, and including, striking off is available. Despite the fact that Ms Shah submitted that a suspension order should be made, the Panel took the view that it was necessary to make its decision in the ordinary way.

72. The Panel began its discussion by identifying the aggravating factors, and those matters it was appropriate to apply in favour of the Registrant.

73. The Panel agreed with the submission of the Presenting Officer that this case is to be treated as a serious one; the Panel has found dishonesty, the findings (including those that were decided to have been dishonest) can properly be said to represent a pattern of unacceptable behaviour, and, by sending emails to service users, breached the trust of both his employer (to whom he owed a duty not to breach data protection requirements) and the service users whose details he used (who could legitimately expect their personal details to be confined to Nuffield Health).

74. While not contending that they mitigated the seriousness of the specific allegations determined by the Panel to be proved, there are nevertheless factors the Panel considered could properly be taken into account in favour of the Registrant. They are:

• The fact that the Registrant does not have a history of regulatory findings against him.

• The absence of any suggestion of further inappropriate conduct since the events reflected in the Panel’s findings.

• That the events occurred at a time when the Covid-19 pandemic resulted in the Registrant feeling anxious and uncertain.

• That soon after the events occurred, the Registrant took steps to identify the triggers that resulted in him behaving inappropriately, and then taking steps to address those triggers.

• The Registrant has fully engaged in the HCPC’s fitness to practise process.

• The positive testimonial and feedback evidence produced by the Registrant.

75. With these identified factors in mind, the Panel addressed the questions that needed to be answered.

76. For the reasons just stated, this is to be treated as a serious case. In the view of the Panel it is a case that requires the imposition of a sanction.

77. The findings are far too serious to result in a caution order; the issue (per paragraph 101 of the Sanctions Policy) cannot be described as isolated, limited or relatively minor in nature.

78. The Panel next considered whether a conditions of practice order would be appropriate. The requirement to behave honestly is one that arises from the ordinary obligations of registration; it would not be appropriate to impose that requirement as a condition of practice, and in any event it could not be monitored in any meaningful way.

79. Accordingly, the Panel next considered whether a suspension order should be made, and had regard to paragraph 121 of the Sanctions Policy. The bulleted points in that paragraph are;

• 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 that the registrant is likely to be able to resolve or remedy their failings.

80. When the Panel applied these suggested factors to the present case, it decided:

• the findings in the present case do indeed represent a serious breach of the Standards of conduct, performance and ethics;

• as already explained, the Registrant does have insight; in the view of the Panel the fact that there is still insight to be gained should not detract from the insight the Panel acknowledges he already has;

• the Panel has found that there is a residual risk of repetition, but the degree of this risk does not make it likely that it will be repeated;

• as the Panel has already stated, there is no reason why the Registrant should not be able to achieve full insight, and his commitment to his profession gives confidence that he will do everything he can to do so.

81. Having carefully considered the matter, the Panel considered that a suspension order would represent a proper and proportionate response to the findings made. It will serve to protect the public until such time as the Registrant is able to persuade a reviewing panel that he should be permitted to return to unrestricted practice. A suspension order is a significant sanction, and as such will both serve to underline the seriousness of the findings so as to declare proper professional standards and reassure the public that dishonesty will not be tolerated. However, at the same time a suspension order allows the Registrant the prospect of being permitted to return to practise his profession.

82. Before finally concluding that a suspension order should be made, the Panel considered whether a striking off order should be made. The conclusion of the Panel is that it would represent a disproportionate response while there remains the realistic prospect that the Registrant will be able to satisfy a future reviewing panel that he is fit to return to unrestricted practice.

83. The Panel has determined that the appropriate length of the suspension order is 12 months. The Panel imposes this length in recognition of the task that lies ahead if the Registrant is to demonstrate that he has achieved full insight such that the risk of repetition is sufficiently reduced to enable him to return to practise as a Physiotherapist.

84. The Panel acknowledges that it is customary to offer suggestions of steps that a Registrant who is made the subject of a suspension might consider taking for the purposes of the review of the order. The Panel has made a conscious decision not to take that course in this case because the issue the Registrant will need to address on the future review is the development of a sufficient degree of insight that will enable him to return to unrestricted practice. In the view of the Panel, if that insight is to be meaningful it will need to be the result of the Registrant’s own efforts and not be led by the present Panel.

Order:

That the Registrar is directed to suspend the registration of Mr Warren Brown for a period of 12 months from the date this Order comes into effect.

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order

Application

1. After the Panel handed down its written determination explaining its decision to impose a substantive Suspension Order, the Presenting Officer applied for an interim suspension order to cover the appeal period. In his submissions he made it clear that he was applying for that order on the basis that it was necessary for protection of members of the public and that it was otherwise in the public interest. In advancing his submissions, the Presenting Officer referred the Panel to the relevant Practice Note issued by the HCPTS, although he noted that much of the advice contained in the document was directed to interim orders applied for in advance of the substantive hearing.

2. On behalf of the Registrant, Ms Shah opposed the HCPC’s application. She submitted that it followed from the Panel’s assessment of the degree of risk of repetition, coupled with the Panel’s finding that the risk of tangible physical harm was low, that an interim order could not be said to be necessary for protection of members of the public. That being so, she submitted that the circumstances would not justify the imposition of an interim order on the public interest ground alone. Ms Shah also submitted, that if the Panel did not agree with her primary submission that the grounds for the imposition of an interim order were not met, then the Panel should make an interim conditions of practice order restricting the Registrant’s work to the GP practice where he has been working. To make an interim suspension order with immediate effect, she submitted, would result in serious financial difficulties for the Registrant.

Decision

1. The Panel was satisfied that it had jurisdiction to consider the making of an interim order because the Registrant was informed that an application for an interim order might be made in the notice of hearing email sent on 16 June 2023. Accordingly, the Registrant had been afforded an opportunity of making representations on the issue of whether such an order should be made.

2. The Panel approached its decision on whether an interim order should be made by accepting that the default position is that when a substantive sanction is imposed a Registrant’s ability to practise should remain unrestricted while their appeal rights remain outstanding.

3. The Panel obviously does not resile from the findings it has already made. It carefully considered the argument advanced by Ms Shah that the circumstances did not justify a finding that an interim order is necessary for protection of members of the public. However, the Panel concluded that the necessity test is satisfied for two reasons. First, it is not the Panel’s decisions on the likelihood of repetition, and the prospect of recurrence resulting in physical harm, that there is no risk of tangible harm. Furthermore, harm that is relevant to the first ground on which an interim order can be made extends to harm other than physical harm; dishonesty committed by a healthcare
professional has the potential to damage trust and confidence, and in turn that has the clear potential to result in service user harm.

4.The Panel finds that an interim order is necessary for protection ofmembers of the public. It is also necessary in the public interest.Dishonesty has been established in this case, and that puts thereasonable perception of informed members of the public in adifferent category to the perception of an unproven allegation.

5.The Panel considered whether the conditions of practice imposed onan interim basis suggested by Ms Shah would provide an adequatedegree of protection and sufficiently maintain public confidence whilethe Registrant’s appeal rights remain outstanding. However, havingcarefully considered the matter, the Panel concluded that they wouldnot. The factor that gives rise to the risks identified in the precedingparagraph is dishonesty, and dishonesty is something that in the viewof the Panel cannot be adequately monitored, even by a party whoknows of the allegation. It follows that the identified risks would bepresent even were the Registrant to be permitted to continue to workat the GP practice to which it was suggested he should be restricted.

6.The result of these findings is that the Panel concluded that an interimsuspension order is the necessary and proportionate order to make.

7.It is appropriate for that interim order should be made for a period of18 months. Such a period is appropriate because the interim orderwill automatically fall away if the initial 28-day period passes and theRegistrant does not appeal, yet if he does appeal it could be 18months before that appeal is finally determined.

8.The Panel is satisfied that in the circumstances, this is aproportionate order to make given the seriousness of the findingsmade.

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.

History of Hearings for Warren Brown