David Brown

Preliminary Matters
Service
1. The Panel noted that the Health and Care Professions Council (Coronavirus) (Amendment) Rules 2021, contained an express power for the HCPC to serve a notice, or other document, on a registrant via electronic mail to the registrant’s registered email address, and to hold hearings via audio and video link where necessary.

2. The HCPC sent a Notice of Hearing by email to the Registrant’s registered email address, as shown on the HCPC register, on 21 May 2024. That Notice of Hearing set out the time, date and mode of hearing, and was despatched in sufficient time in advance of the hearing. The rules provide for proof of service, but do not provide for the HCPC to show receipt. However, by the use of an electronic mode of delivery of the Notice of Hearing, an email receipt was available for the Panel.

3. The Panel took legal advice and following close examination of the documentation within the Service Bundle, came to the conclusion that there had been good service in accordance with the Rules.

Proceeding in the absence of the Registrant
4. The HCPC made an application for the Panel to exercise its discretion to proceed in the Registrant’s absence. In support of that application the HCPC highlighted the following factors:
• In terms of communication and engagement:
 The Registrant had email contact with the HCPC’s former solicitors, Kingsley Napley, between December 2021 and July 2022, in which the Registrant confirmed that he had joined the Army and had committed to the minimum five years of service, which would come to an end in May 2026. He stated that during that time he would not be requiring his HCPC registration. He emphasised that whenever he was on military deployment he had limited access to ‘civilian email’ and therefore his contact would be ‘sporadic’.
 The Registrant had been in communication with Capsticks, who had recently taken over the conduct of this matter, on 3 and 21 July 2023. At that time the Registrant emphasised that he was deployed on operations abroad until January 2024, and so was not able to use ‘voice phone comms’ but would be able to receive texts and WhatsApp messages, but this would be sporadic. At that time, he made enquiries about the proposed Preliminary Hearing which was due to take place in October 2023.
 There was further engagement by the Registrant with Capsticks on the 24 March 2024, when he sought confirmation of the password required to gain electronic access to the HCPC bundle of documentation.
 The Registrant has not communicated since March 2024; he has not responded to the Notice of Hearing; nor has he provided any information or documentation for this hearing.
 The Registrant has not sought an adjournment of this hearing, and, on the information before the Panel, there is nothing to indicate that an adjournment would result in the Registrant’s attendance.
 The HCPC has five witnesses warned and they are ready to give evidence.
 Further delay in these proceedings would have an impact on the recall of those HCPC witnesses.
 The Registrant has not provided any reason for his absence and therefore in all the circumstances it can be assumed that he has voluntarily absented himself.
 The rules in relation to service and production of documentation have been complied with and there is public interest in this matter going forward without further delay.

5. The HCPC conceded that there was some prejudice to the Registrant in proceeding in his absence. However, taking into account all those factors highlighted by the HCPC, it was submitted that the public interest in this matter proceeding without further delay outweighed any such prejudice.

6. The Legal Assessor advised the Panel that it has the power to proceed in the Registrant’s absence and this was set out in rule 11 of the Conduct and Competence (Procedure) Rules 2003 (as amended). She stated that this power was a discretionary one (as identified in the case of Tait v Royal College of Veterinary Surgeons) and should be exercised with extreme caution in line with the judicial guidance set out in the cases of R v Jones and Hayward. She referred the Panel to the HCPTS published guidance on proceeding in a registrant’s absence which referenced the criteria set out in those two cases.

7. The Panel considered this application and noted all the factors outlined above. The Panel came to the conclusion that it would proceed in the Registrant’s absence for the following reasons:
• There is nothing from the Registrant as to why he is not present, nor to indicate whether he would be more willing to attend at a future date.
• There has been limited engagement by the Registrant, and nothing heard from him since the HCPC documentation had been supplied in March 2024.
• This matter is now some four years old and further delay was not in the public interest.

Further documentation
8. During the hearing two HCPC witnesses made reference to documentation that was not before this Panel, and therefore had not been served upon the Registrant as part of the HCPC case, nor been before the Investigating Committee Panel (ICP). These witnesses made reference to the ability to provide that further documentation. The HCPC did not make an application for this documentation to be produced on the basis that it may cause prejudice to the Registrant.

9. The Panel sought the Legal Assessors advice on this issue as to whether, of its own volition, it could and should obtain this further documentation. The Legal Assessor referred the Panel to the Conduct and Competence Committee (Procedure) Rules 2003 and the terms of Rule 10(1)(b) and (c), which provide the Panel with wide ranging powers to admit evidence. She referenced the fact that the Panel should assess whether to obtain this further documentation may cause prejudice to the Registrant and whether in fairness to the Registrant it should be made available to the Panel. This consideration had to be balanced with the interests of the overriding principle of public protection. Her advice referenced the means of obtaining this information by way of a Production Order, a process that is set out within an HCPTS Practice Note.

10. The Panel considered this matter and came to the conclusion that to seek this further information may cause the Registrant some prejudice. Further, the Panel’s decision to proceed in the absence of the Registrant had, in part, been based on the knowledge that the Registrant knew the full extent of the case against him, therefore, to obtain further information at this stage would be unfair.

Documentation supplied to the ICP by the Registrant
11. At the end of the last HCPC witness evidence, the Legal Assessor made the Panel aware that there was documentation from the Registrant in the HCPC’s possession and which was not included with in the documentation before this Panel. The Legal Assessor has not seen all that documentation but has seen a letter addressed to the ICP which has not been referenced in this hearing. The Presenting Officer also had no knowledge of the documentation supplied by the Registrant until that point in this hearing.

12. The Legal Assessor, after reading this letter, advised that whilst there were matters within the document which may not be completely in the Registrant’s own interests, however he had referenced the issues of admissions, reflection and insight, matters which would assist the Registrant’s case, and would better inform the Panel. The letter was constructed such that partial redaction might make reading and understanding difficult. The Legal Assessor informed the Panel that the letter referred to the Registrant’s personal circumstances in 2020, and these are of course personal and private matters that should not be referenced in open session, however, those matters provide a fuller picture of what the Registrant states was happening in his personal life at that time.

13. The Legal Assessor emphasised that she was not representing the Registrant, but in her limited capacity as Legal Assessor, she was, in the absence of the Registrant and any legal representation of him, ensuring that the Panel had before it relevant information that the Registrant may have considered the Panel would have been provided with.

14. The Presenting Officer stated that she was neutral on the admission of this letter, which was specifically addressed to the ICP, and brought to the Panel’s attention the following:
• There was no express request by the Registrant for this letter to be placed before this Panel although she accepted that there may have been an expectation by the Registrant that information previously sent by him would be more widely shared.
• The HCPC bundle had been sent to the Registrant in March 2024 and the Registrant requested the password to enable him to open this bundle of documents. From a review of that bundle the Registrant would have been aware that there was nothing within that HCPC draft bundle from him.
• The covering letter which accompanied the HCPC draft bundle indicated that any documentation which the Registrant intended relying upon at the final hearing should be supplied at least 21 days in advance of that hearing. From this the Registrant would be aware that the onus was on him to provide documentation for this hearing.
• The letter does reference limited admission which may cause the Registrant some prejudice, however, an aspect of that admission may be taken into account for his benefit. The Presenting Officer stated there is no harm in this going before the Panel. Given the wider aspects which are covered in the letter this may be of some assistance to the Panel.

15. The Panel had previously received advice from the Legal Assessor on the issue of admissibility. The Panel noted the position of the Legal Assessor in ensuring that the Registrant’s stated position is known to the Panel.

16. The Panel noted that the Legal Assessor had been prompted to enquire if there was anything sent by the Registrant at earlier stages of the regulatory process. This was based on the information supplied on Friday by the HCPC’s Registration department’s manager, that the Registrant had renewed his HCPC subscription in 2020. This action coupled with the Registrant’s statement that he cannot use his registration whilst in the Army demonstrated a desire to retain his registration.

17. The Panel noted that it is HCPC policy not to include anything which is sent to the ICP unless there is a specific request from the Registrant for it to be placed before a final hearings panel. However, having heard from the Legal Assessor and the Presenting Officer that there was information within this letter which would be of assistance to the Panel, it decided to exercise its discretion to obtain and accept this letter into evidence.

Background
18. The Registrant is a registered Dietitian. He was admitted to the Register on 8 July 2017 and renewed his registration in 2018 and 2020.

19. The Registrant initially worked in a locum capacity within the Community Team at the East Suffolk and North East Essex Foundation Trust (the Trust). The date the Registrant started work as a locum and received his induction is unknown, however there were no records of any concerns relating to the Registrant’s performance and record keeping during his time working as a locum.

20. The Registrant joined the Trust’s Oncology Dietetic Team on a fixed term contract to cover a period of secondment whilst Person A undertook a Macmillan Project. When the Registrant joined the Oncology Dietetic Team it was as a Band 6 dietitian. He covered Person A's secondment for a period of one year from May 2019 to April 2020.

21. The Registrant’s role within the Oncology Dietetic Team included covering some Oncology patients and managing the Motor Neurone Disease (MND) caseload of patients for Person A, as well as continuing with some project work. Whilst the Registrant was covering Person A’s role, he had sole responsibility for managing the caseload of MND patients, responsibility for Oncology home visits, and radiotherapy patients.

22. Towards the end of January 2020, Person A prepared for her return to Oncology as it became clear that her project and secondment were coming to an end due to the impending COVID pandemic lock down. Upon her gradual return to Oncology Person A started to re-familiarise herself with the patients who had been under her care before her secondment, and to identify the needs of new patients.

23. Initially a meeting was arranged for handover on 10 February 2020, but this was postponed to later in the week as the Registrant was not in the office that day. In preparation for that meeting Person A undertook a complete review of patient notes. Person A became concerned about the Registrant’s level of record keeping and this concern increased as she reviewed more patient files and identified that visits had not been arranged nor patients given the clinical attention and care they required. At Person A’s meeting with the Registrant in February 2020, he was unable to provide any explanation.

24. Person A committed to a spreadsheet the number and types of information that she had found were missing within those patient notes, such as lack of clinical records, appointments, or core information such as weight, height, feeding etc. Person A shared her concerns about the extent of these omissions and lack of essential information relating to care given to these patients with Person D.

25. The extent of the poor record keeping and missing information was discussed with the Registrant at a meeting on 17 February 2020. Person D led that meeting and committed to writing an outcome action plan in an email later that day, in which she identified immediate action to be taken in respect of specific service users. In that email Person D identified that this work was to be concluded by 13 April 2020, when there would be a final handover from the Registrant to Person A.

26. On 10 March 2020 a Datix incident investigation report was made. This related to the Registrant making an entry within a patient file on 10 December 2019, recording that he had seen this service user on that date. That service user had died on 21 November 2019 and so the Registrant could not have seen that service user on 10 December 2019 as his recorded entry showed.

27. On Friday 20 March 2020, the Registrant attended a meeting with Persons C and D (his co-line managers) to discuss the issue of his record keeping and the error that had resulted in the raising of the DATIX incident investigation report. Following that meeting an action plan was constructed based on the Trust’s Informal Capability Guidance. The Action Plan was expected to take immediate effect; however, it did not become operative until 10 April 2020, as the Registrant had to self-isolate after falling ill. The first Covid lock down started on 23 March 2020, when the department changed the way it worked.

28. Part of the Action Plan was for the Registrant’s appointment plan, notes and records of visits to be reviewed by his supervisor on a daily basis. The Registrant’s records were checked during the period 10 April 2020 to 17 April 2020 by either Person B, C or D, and were found to be of a suitable standard.

29. The Registrant left the Trust on 17 April 2020, having submitted his resignation some time earlier. His resignation was due to the timing of the project and secondment coming to an end, and that of his proposed Army training.

30. The Trust’s investigation into the concerns about the Registrant’s record keeping were the subject of a referral to the HCPC on the 20 April 2024. The matters referenced in that referral are the subject of the Allegation set out above.

Witnesses
31. The Panel received evidence from five HCPC witnesses, four from the Trust’s Dietitic Team, and one from the HCPC Registrations’ Department.

Person A – DT
32. Person A was a Specialist Dietitian in Oncology at the Trust and is registered with the HCPC. Person A told the Panel that in preparation for the Registrant taking over her role during her secondment to a Macmillan project, the Registrant had shadowed her on 30 April 2019 and 1 May 2019 whilst she conducted home visits. She considered this to be more of a dialogue rather than formal training, as the Registrant was an experienced Band 6 dietician. Person A also organised for him to spend time with the MND specialist nurse on 8 May 2019 and introduced him to staff at the local hospice. She had made it clear she was available to provide support or guidance should he need it. At the time of handover there were between 20 and 30 service users under the care of Person A.

33. Person A stated that the Registrant had worked as a community dietitian in a locum position within the Trust for some time before joining the Oncology dietetic team, and the standards for documentation expected of him were therefore the same in the locum role as the substantive position.

34. The Registrant’s failings in record keeping were noted by Person A upon her return from her secondment and noted as being:
• a lack of recording of weights for patients,
• a lack of narrative in relation to patients’ swallowing ability and whether this was becoming more difficult or not,
• an absence of a diet history and indication of consistency of foods managed,
• an absence of an estimation of energy and protein intake,
• a lack of information regarding patients’ bowels and fluid intake, and
• a lack of discussion of a feeding tube and what the outcome of this discussion was.

35. By the middle of February 2020, Person A had completed her review of the service user records for the Oncology/MND caseload and recorded this in a spreadsheet. That spreadsheet and her comments on each individual service user was before the Panel.

Person B – HG
36. Person B is a Band 7 dietitian and registered with the HCPC. Person B line managed Person D, and Person D was the Registrant’s line manager together with Person C.

37. Person B gave evidence relating to the standards that are expected of a dietitian and confirmed that whenever a service user was seen by a dietician an outcome form had to be submitted along with supporting dietetic clinical notes. All outcome forms; correspondence; service user assessments and action plans; and notes of advice given, were stored on an electronic system called Evolve. Notes were to be recorded and submitted electronically. However, at that time it was also acceptable to make handwritten notes and submit them for scanning onto the digital system.

38. Person B stated that there had been an occasion where handwritten notes had been lost, but that had been an isolated incident. There had been no issue with scanning in of notes at the time of the Registrant’s work in the department.

39. Person B had conducted only one of the daily supervision sessions with the Registrant during the week 10 to 17 April 2024, and this had been by email on 13 April 2020 when she had felt able to sign off his service users notes as being adequate.

40. Person B, as the senior, had undertaken the investigation of the incident reports relating to Service Users 12, 14, 15 and 16, which were the subject of Datix incident investigation reports raised by Person A. Person B had also been involved with the investigation of Users 1, 2, 3, 4, 5, 9, 10 and 11 whose files had a later stage in the initial investigation been identified as having little or not detail and considerable delay in receiving treatment. Person B confirmed that her investigation of the Registrant’s records from May 2019 showed a lack of documentation for advice given and, where there was documentation, this was lacking in crucial detail.

Person C – CD
41. Person C is a Community Team Lead Dietitian and is registered with the HCPC. Person C told the Panel that record keeping was not included within the Registrant’s induction into his substantive role because he had already worked within the department within the Community Team.

42. Person C stated that, in terms of record keeping, there would be an outcome form which stated when the patient was seen and when they needed to be seen again. It was expected that for every patient seen in the department a dietetic record and an outcome form would be completed and submitted. Person C stated she expected to see anthropometrics, clinical information, dietary intake, estimate requirements and a plan, or in the SOAP format, subjective information, objective information, assessment information and a plan.

43. Person C alongside Person D as joint managers and supervisors attended the meeting with the Registrant on 20 March 2020, when it was decided to undertake daily supervision of the Registrant’s caseload.

Person D – LM
44. Person D, is a Paediatric Dietitian and Team Leader, also registered with the HCPC.

45. Person D was able to confirm the processes for record keeping as outlined to the Panel by Person B. There were clinical guidelines for nutrition support which stated that there was an expectation for service users to be reviewed every 3 months, which can over time then move to every 6 months.

46. Person D had been present at the meeting with the Registrant on 20 March 2020 and had produced the notes of that meeting at which Person C was also present.

HCPC’s employee MR
47. MR is the Manager of the HCPC Registrations Department, and he was able to confirm that the Registrant did not, in March 2020, or at any point since, make a referral to the HCPC in relation to a limitation or restriction being placed upon his practice.

48. MR confirmed that being placed under supervision would not be considered a restriction. However, having a defined area of practice, such removal from engagement with MND service users, or being prohibited to undertake specific forms of treatment, would be considered a restriction. If there were such a restriction on the type of service user a registrant can see, or processes they are allowed to carry out, in such a situation there was an expectation that a registrant would inform the HCPC of that restriction.

Submissions
The Registrant
49. The information the Panel had before it from the Registrant was the letter that he had sent to ICP on 17 September 2021. The Panel was aware that there may be further information that is not before it. The matters of relevance extracted from that letter at this factual stage are:
• That for a variety of personal and private reasons, as well as the pressures of the joint caseload, in 2019 and 2020, the Registrant had failed in his responsibilities as a qualified dietitian. The Registrant acknowledged that his record-keeping had not met the standard of record keeping expected of him.
• That his handwritten notes had failed to be scanned into the system. The Registrant refers to this problem of lost notes being a team wide issue.
• The Registrant alluded to the difficulties of the incorrect coding of entries into the Evolve system which could result in errors. He referenced fellow team members adopting a code purely so that it was acceptable to the system, rather than the correct coding.
• The Registrant denied any suggestion that he had acted dishonestly. He stated that the question of his motives and honesty had not been an issue raised by the Trust whilst he had been working there.
• In relation to Particular 2, the entry of a visit after the service user had died. The Registrant stated that he had been able to identify that the visit had taken place on 10 October 2020, and not 10 December 2020. However, either due to a typing error, or the fact that the system automatically self-populated the date, the system had erroneously recorded the date of his visit.

HCPC
50. The Presenting Officer provided the Panel with detailed and lengthy written submissions in relation to the factual evidence. In those submissions she highlighted the difficulties the Panel may have in reaching the requisite standard of balance of probabilities on two particulars. First, the evidence offered by the HCPC for Particular 6, dishonesty, in relation to particulars 2 and 5. Secondly, evidential issues relating to Particular 5, the matter of self-referral to the HCPC. The Presenting Officer had also identified that there were some evidential issued relating to Service User 5 in relation to Particular 1(c) and Service User 8 in relation to Particular 4.

Particular 1
51. The Presenting Officer had drawn the Panel’s attention to the consistency of the evidence from her Trust witnesses in relation to the issue of what constituted a proper record of a recorded ‘interaction’ with a service user. She emphasised that there had been a consensus of opinion on the issue that the Registrant’s record keeping was extremely poor and that the number of omissions to make appointments or recorded outcomes was very concerning.

52. The Presenting Officer reminded the Panel that whilst handwritten notes were permissible, such notes had to be submitted for scanning and that all recordings should be made in a timely manner. She highlighted the fact that there were many occasions when the Registrant had recorded on the Evolve system that he had seen a service user and stated that he had made handwritten notes. However, the investigation had established that those handwritten notes had not then subsequently appeared on the Evolve system. The Panel was reminded that there had been no supporting evidence that the Registrant’s notes had gone astray, as alleged by him, nor that he had raised this as an issue at any time before the review undertaken by Person A.

Particulars 1(a) and 1(b)
53. The Presenting Officer acknowledged the overlap the wording within limbs 1(a) and 1(b) had created, and so had addressed these matters jointly. The Panel was invited to find those limbs and their schedules proven in their entirety.

54. Person A had been able to confirm that she had taken into account any time delay there may have been in the scanning into the system any notes produced by the Registrant. Person A confirmed that any handwritten notes scanned into the system were designated as ‘legacy notes’.

55. Person A had confirmed that she had taken her responsibility in preparing the detailed schedule of service user information very seriously. The Panel had all supporting documentation for each service user from which it was able to confirm for itself the accuracy of the information recorded in Person A’s spreadsheet. The Presenting Officer in her written submissions had helpfully listed each service user referenced in the two schedules and identified for the Panel the supporting record entry and exhibit number. The Presenting Officer has also identified which service users featured in both schedule 1 and 2.

56. The HCPC was also relying upon the evidence of Person B, the senior clinician in the Team, who had reviewed and further investigated those service users whose cases were considered as serious. Her report and witness statement supported in part the investigation undertaken by Person A in relation to the cases which she had personally reviewed and which are listed in Schedules 1 and 2.

Particular 1(c)
57. The HCPC was, in respect of this limb of the Particular, relying upon the evidence of Persons A, B. and C. There were six cases listed in schedule 3, where it was alleged that there had been excessive delay in carrying out an intervention. The Panel had been provided evidence by the Trust’s witnesses that there was a variety of periods within which it would be appropriate for a review to be carried, and this related to the nature of a service user’s condition.

58. Person B stated that high risk service users would be seen every month. Outpatients less frequently, perhaps every other month, with the clinician making the decision as to the timing of the review.

59. Person A stated that all reviews should be carried out, as a minimum, every three months, with more serious cases, where the service user’s health was deteriorating quickly, should be seen every month. There was an element of clinical judgment in this regard.

60. Person C stated that where a service user had a feeding tube there was an expectation that this service user would be seen as a minimum every three months or more frequently if clinically indicated. Person C noted that the Registrant had been attending MND service users, whose clinical needs could change quickly, and so there may be clinical reasons to undertake reviews more frequently.

61. It was submitted that five of the six cases listed in Schedule 3, were supported by the evidence before the Panel and those five cases demonstrated that there had been considerable delay in carrying out reviews of those service users.

62. The sixth case, relating to Service User 5, it was submitted, was not straight forward, because of possible intervening treatment of this service user whilst under the care of a hospital. In relation to this service user there had been an outcome form for a dietetic follow up issued by the Registrant on the 17 June 2019. That outcome form required a review within four weeks. The Evolve system noted that the Registrant had not carried out a further review by the Registrant until 27 February 2020, following a request from a consultant for this service user to be reviewed.

63. This service user had, in the intervening period, undergone a gastrostomy operation and had been discharged on 11 July 2019. It was unknown whether there had been any review of this service user by a hospital dietitian whilst in hospital, or as part of a follow up programme following his discharge. It was submitted that therefore in relation to this one service user, there may be an issue of whether the HCPC has discharged its burden and demonstrated that the evidence has reached the requisite standard of balance of probabilities.

64. In regard to the delay by the Registrant in carrying out reviews in a timely manner, the HCPC reminded the Panel that it had heard from Person D on 24 January 2020, that the Registrant had not raised any issues with her about the size of his caseload, nor any problems with keeping up with the timeliness of his reviews.

Particular 2
65. The Panel had evidence from Person A that the records for Service User 6 were of poor quality and included numerous omissions. The issue of the Datix incident investigation report arose out of the dating of one of those incomplete record entries which was recorded as made on the 10 December 2019. That entry, recorded on 10 December 2019, indicated that this service user had expressed a wish for future reviews to be undertaken by telephone. This patient had died on 21 November 2019.

66. The evidence of Persons C and D was that the issue of the date of the entry had been explained by the Registrant as a possible typing error and that following the meeting on the 20 March 2020 the Registrant had undertaken to check his diary to establish the date he had seen this service user. The evidence of those two witnesses was that the Registrant had a habit of taking his diary home and that they had not seen his diary nor had this diary been relinquished when the Registrant left the service. The Registrant had subsequently confirmed that the visit had in fact been undertaken on 10 October 2019.

67. The HCPC acknowledged that the Datix incident investigation report had been closed following confirmation from a member of the team that the entry date was an error for 10 October 2019. This confirmation undermined the HCPC’s position in relation to the allegation that this erroneous entry had been made dishonestly. However, the fact of the entry evidencing the wrong date does not undermine a finding of the factual basis of this particular.

Particular 3
68. The HCPC submitted that the evidence before the Panel supported a finding of proven, in that the entry relating to this home visit to Service User 6, on 6 June 2019, had not been entered onto the system until 14 November 2019, a delay of five months before inputting an outcome that should have been completed within a week of the home visit.

Particular 4
69. The HCPC acknowledged that on the evidence before the Panel, there is doubt as to whether the Registrant was in fact expected to enter into any form of correspondence. There was evidence which supported the fact that the Registrant had failed to carry out any reviews and there was no documentation on the system, however that is not how this particular is worded.

70. The evidence of Person A was that there should have been evidence of periodic reviewing and updating of this service user and evidence that he had been keeping the consultant neurologist up to date on the progress of this service user. In evidence, Person A had stated that if the referral had already taken place, then the decision on this issue of a PEG feed would have been left with the service user.

71. The Panel was reminded that Person B had told the Panel that in her opinion, she did not believe that the Registrant should have sent any correspondence or referrals relation to the placement of the feeding tube, as this had been actioned prior to him starting his substantive role.

72. Person C informed the Panel that if the referral had been submitted, she would not expect there to be any correspondence relating to this issue.

Particular 5
73. The HCPC was relying upon the principles set out in Standard 9.5, which stated that a registrant must inform the HCPC, if there is a restriction placed on their practice. It was submitted that the issue in this instance was whether the Registrant had been made the subject of restrictions on his practice.

74. Persons C and D had been present at the meeting with the Registrant on the 20 March 2020, at which the Registrant’s future role was discussed. Both were clear in their evidence that the outcome had been, that with immediate effect, the Registrant would be the subject of daily supervision.

75. Person C stated that the Oncology and MND service users were taken away from the Registrant, but this reflected the fact that Person A had returned from her secondment early. Person C stated that it was in the Oncology and MND service users’ interests that they returned to Person A, but also, due to the imminent lock down, and the need to work from home, it was better that the Registrant had a defined case load which they would be better able to monitor.

76. Person D could not recall whether there had been any discussion of the Oncology and MND service users being taken away from the Registrant and indeed believed that some Oncology service users may have been left in his care.

77. If the Registrant had been made the subject of restrictions, then the evidence of MR, that the Registrant had not informed the HCPC would become relevant. However, this may not be the case in light of the testimony of Persons C and D. Based on this testimonial evidence, it was submitted that it was not clear whether the Registrant had been the subject of restriction on his practice, or that he had indeed been informed and understood that he had been made the subject of restrictions.

Particular 6
78. In relation to the issues of dishonesty arising out of Particulars 2 and 5, the HCPC had addressed that in part within its submissions on the factual basis of those particulars. It was however further submitted that:
• The Panel may well consider that the fact that the Trust had accepted, in relation to particular 2, the Registrant’s explanation in relation to the Datix incident investigation report arising from an entry on Service User 6’s notes, had removed any suggestion of dishonesty; and
• If the Registrant had not been, nor knew that he had been, made the subject of restrictions on his practice, as required by particular 5;
then the substance of the two allegations relating to dishonesty would naturally fall.

Decision on Facts
79. The Panel accepted the advice of the Legal Assessor and noted the approach it should take in relation to the factual evidence it has been presented. The Panel noted that the onus at this stage in the proceedings is upon the HCPC to prove its case to the requisite level of balance of probabilities.

80. The Panel has noted the contents of the Registrant’s letter of 17 September 2021, addressed to the ICP, in which he had made limited admissions in relation to the quality of his record keeping at the relevant time. The Panel was aware that notwithstanding this admission, it was for the Panel to decide on the evidence before it, whether the matters alleged have reached the evidential threshold. An admission in this regulatory hearing is not the same as a plea of guilty within the criminal arena.

81. The Panel has accepted the detailed submissions of the HCPC, and carefully scrutinised all the documentary evidence. Of assistance was the spreadsheet and supporting commentary prepared by Person A, which the Panel has found helpful in making its decisions in relation to the matters set out in limbs 1(a) and 1(b) and their schedules of service users.

82. The Panel started its deliberations of the Registrant’s practice by identifying and considering which standards should be used as a benchmark against which to measure the Registrant’s acts and omissions. The Panel noted that the documentation exhibited within the HCPC bundle, were not appropriate for use as a benchmark, in that:
• The Clinical Record Keeping Guidelines Vol 1.0 had been introduced in December 2020, which was after the events in question;
• The Clinical Guidelines Nutrition Support was undated, and this was expressed as being guidance rather than a standard; and,
• The Ipswich Hospital NHS Trust – Nutritional and Dietetic Service – Standards for Patient Record Keeping, was dated November 2013 and indicated a suggested review date of November 2015. There was no evidence whether or not this Policy document had been reviewed and thereafter periodically updated.

83. This being the case, the Panel relied upon the HCPC Standards of Conduct Performance and Ethics and Standards for Proficiency for Dietitian relevant in 2019, to establish the duties, responsibilities and standards that should be attained by the Registrant. The Panel noted that Person B had stated that the Dietitic team had adhered to the HCPC standards relating to record keeping, as well as in house guidance and policies.

84. The Panel noted that the Trust expected there to be documentation in the form of outcome notes which would record what advice had been given. The Trust also expected to see supporting dietetic notes relating to all service user reviews, including those seen in the clinic, participating in phone reviews, or the subject of home visits. All reviews should include dietetic information and notes on current anthropometrics, the patient’s swallowing ability, the service user’s type of diet, the patient’s current fluids management, the patient’s motor skills, and information on bowel motions as well as core and basis information relating to diet and nutrition.

Particulars 1(a) and 1(b) – Found Proved
85. The Panel noted the overlap in the wording of these limbs of the Particular. In interpreting the intent of those two limbs of Particular 1, the Panel noted the use of the term ‘interventions’ within limb 1(b). The Panel interpreted this term as relating to interactions with, or relating to, a service user.

86. As mentioned above, the Panel made considerable use of the information supplied by, and supported by, Person A’s further oral testimony. The Panel has scrutinised and cross referenced the information within Person A’s spreadsheet. The records of each service user were reviewed by the Panel to establish whether the Registrant had recorded, or failed to record, the following:
• Anthropometrics e.g. weight, mid upper arm circumference
• Oral intake – type and consistency of food, estimated intake
• Swallowing ability – coughing/choking
• Supplement/feed details
• Requirements
• Bowels/hydration

87. The Panel also noted the supplementary comments within the record of the assessments carried out by Person A in her review of each service user file. The Panel referred to each service user record, to establish whether the information within the assessment carried out by Person A, fully correlated with the content of those service user notes.

88. Applying the standards which are expected of a registered dietitian in relation to record keeping, the Panel has found that all service users listed in schedule 1, and which are the subject of the allegation within limb 1(a), have been proven in that they all lacked the requisite level of clinical detail in order to inform fellow practitioners.

89. In relation to limb 1(b), the Panel found that none of the file notes for service users listed in schedule 2, contained ‘full clinical documentation and/or the clinical notes relating to service user interventions’. That is, information on which a fellow practitioner could rely on and would use for making a judgment. The Panel finds this limb proven in its entirety.

Particular 1(c) – proven in respect of five of the six cases listed. There was no finding in relation to Service User 5
90. The Panel accepted the evidence that supported a finding on five of the six service users listed, and in this regard, accepted the submissions and evidence made by the HCPC.

91. The Panel noted that this limb is framed in the alternative of entries not being made in a timely manner and/or at all. In relation to the five cases listed, the Panel concluded that in some cases they were untimely and in some there were no entries at all. The Panel was therefore satisfied that it had evidence for all five service users to support a finding on this particular.

92. The Panel did not, however, make a finding in relation to Service User 5, for, in the Panel’s view, it did meet the evidential threshold. It was unclear whether this service user had been the subject of review by a dietitian whilst he had been in hospital and then the subject of oversight by a hospital dietitian after discharge. If this were the case, and there was no way of checking whether it was or not, then there was no onus on the Registrant to take further action. This uncertainty has led the Panel to make no finding in respect of this particular service user.

Particular 2 – Found Proved
93. The Panel accepted the HCPC’s evidence relating to this entry. The Panel finds that the Registrant had entered Service User 6’s record and recorded a home visit as having taken place on a date that appeared to be after this service user had died. The Panel find this particular proven.

Particular 3 – Found Proved
94. The Panel accepted the documentary evidence of the delay of five months in entering this information on the system, and accordingly find this particular proven.

Particular 4 – Found Not Proved
95. The Panel noted and accepted the evidence of Person B, the senior clinician, who had undertaken a review of this service user’s file, and who attested in her sworn statement that:
‘Based on the information recorded in the notes I do not believe that the Registrant should have sent any correspondence or referral relating to the placement of the feeding tube as this had been actioned prior to him starting his role.’
The Panel has tested this evidence by referencing it against the service user documentation. Having done so, this Panel has found this particular not proven.

Particular 5 – Found Not Proved
96. The evidence before this Panel has not, in the Panel’s view, reached the evidential threshold, in that there was no reference in the notes of the meeting of the 20 March 2020 of a discussion of taking away Oncology and MND service users. Further, these was no reference in those notes of the meeting to the Registrant being informed that he had been made the subject of restrictions on his practice.

97. The evidence from Person C and D was that they had no recollection of a discussion at this meeting relating to consideration of the removal of service users nor of a restriction on the Registrant’s practice.

98. In the absence of any evidence that the Registrant had been the subject of restrictions on his practice, the Panel cannot support the contention that there was a duty upon him to inform the HCPC. The Panel therefore find this Particular not proven.

Particular 6 – Found Not Proved
99. The Panel has received and accepted the detailed advice from the Legal Assessor in relation to the issue of dishonesty and how this should be addressed by the Panel.

100. In relation to Particular 2, the Panel noted that Person B had, in addition to Person C and D, reviewed the issues relating to this Datix incident investigation report for Service User 6. Person B had cleared this Datix report after accepting that this had been an error by the Registrant in entering the wrong date of the visit either by self-population or a typing error. The case for this entry having been made dishonestly is therefore not supported by the evidence.

101. In relation to Particular 5, the evidence from Persons C and D is such that there is sufficient doubt as to whether there was a basis on which the Registrant had been required to refer himself to the HCPC and therefore this Panel has found this not proven. This being the case, the need to consider the issue of dishonesty falls.

Decision on Grounds
102. The Panel noted the HCPC’s submissions and took into account the detailed legal advice it had been given by the Legal Assessor. The Panel also considered the HCPTS Practice Note entitled ‘Fitness to practise: Impairment’. As directed by the Legal Assessor the Panel started its consideration by considering whether the facts, as found proven, either collectively or individually, amount to misconduct and/or lack of competence.

103. The Panel noted that at this stage there is no burden on the HCPC and the matters it is considering at this stage are a matter for the Panel’s judgment. The Panel at this stage is discounting any matter on which it has made no factual findings. Those Particulars are 4, 5 and 6 and one case referenced in Schedule 3 relating to limb 1(c).

104. The Panel further noted that Particular 7 alleges that the Registrant’s actions in relation to Particulars 2, 5 and 6 constitute misconduct and that Particular 8 alleges that Particulars 1, 3 and 4 constitute misconduct/lack of competence.

105. The Panel noted the advice of the Legal Assessor in relation to the distinction that should be drawn between conduct and competence. A lack of competence derives from a failure of knowledge, and not knowing what is the right thing to do in the particular circumstances. Misconduct arising from knowing what to do, but either through neglect, recklessness, intent, or laziness a registrant has failed to do so. For a finding of lack of competence, the Panel requires a sufficient sample of a registrant’s work on which to base its decision. In this regard the Panel took into account the sample of the Registrant’s work whilst working at the Ipswich Hospital during 2019 and 2020 and which covered failings relating to a large number of service users.

106. The Panel has no further or up to date evidence of the Registrant’s practice as a result of his leaving his profession to join the Army. By his own admission the Registrant has stated that his record keeping at that time was not of the requisite standard, indicating that the Registrant has an understanding of the standards that are required of him.

107. Further, there is evidence that the Registrant before taking up his substantive post, and after he became the subject of close supervision, was capable of creating full clinical records to the appropriate standard. This demonstrates that the Registrant had the requisite knowledge and record keeping skills to perform his role of a Band 6 dietitian. The Panel has therefore concluded that the Registrant’s actions did not arise from a lack of understanding of what was required, but as a result of his conduct.

108. Having discounted the Registrant’s actions as arising from a lack of competence, the Panel considered whether his conduct had fallen short of that expected of a registered dietitian. In this regard the Panel had to assess whether the Registrant’s conduct was not just misconduct, but would be considered as amounting to serious misconduct.

109. The Panel noted the number of incidents which had been cited in support of the factual findings in Particular 1. The Panel also noted the period of time over which this conduct had taken place. The Panel also noted that the Registrant’s acts and omissions related to service users who are not only vulnerable but, in some instances, also extremely frail.

110. The Panel noted that the Registrant had in hindsight referenced the size of his caseload as being part of the reasons why his record keeping practice had deteriorated. Within a note of a meeting on 24 January 2020, the size of the Registrant’s caseload had been given consideration, with the Registrant citing 34 to 40 MND cases; 50 to 60 Oncology service users of which he had about 20 to 30 to see over the remaining two to three months; plus his project work and radiotherapy screenings. There is nothing to suggest that he had expressed any concerns about this size of caseload at that time. If the Registrant did have concerns that his practice was being affected by the size of his caseload then it was incumbent on him to raise this as an issue, not only in his own interest, but also that of his service users.

111. The Panel noted that it had evidence of six Datix incident investigation reports arising from the Registrant’s acts and omissions. One of those Datix incident investigation reports relates to the incident involving Service User 6, as identified in Particular 2. This Panel has found that Particular factually proven, but has accepted that it was an error of record entry rather than an intentional dishonest action.

112. The Datix dated 17 March 2020 relates, as suggested by the redaction, to Service User 13. The Panel notes that there is no allegation before it relating to Service User 13 although from the annotation on other documentation, this appears to be a duplication of service user numbering and is a reference to Service User 8. Service User 8 was the subject of the allegation within Particular 4, a matter on which this Panel has made no factual finding. Service User 8 also, however, features in Schedule 1, relating to the allegation of poor record keeping as identified in Particular 1(a) and so has treated references to Service User 13 and 8 as interchangeable.

113. The Panel considered the seriousness of the matters identified in the four Datix incident investigation reports numbered 44532, 44527 44538 and 44540, to assess the impact of the Registrant’s acts and omissions. The Panel noted that the Datix incident investigation reports had been instigated by Person A and that Person B had undertaken the further investigation of those matters relating to Service Users 8/13, 12, 14. 15 and 16.

114. Within her investigation report into those Datix incident investigation reports, Person B states:
‘On review of the notes of the identified patients I have found no evidence of significant detrimental consequence as a result of the issues raised. There is not [sic] evidence to suggest any of the patients needed significant medical interventions or admission to hospital as a result of the actions of the Dietitian. All of the identified patients were already under the care of the dietetic department and had a care plan in place. All patients had contact details of the department and would have been able to access service for review if they felt it was required. No complaints related to the dietetic care have been raised by the patient or other health care professionals.
Documentation relating to the interventions with these patients is lacking or insufficient. On several of the outcomes submitted it has been documented that dietetic notes have been sent to scanning but these have not been uploaded onto Evolve. No issues with scanning have been identified in recent months and other notes sent for scanning have been uploaded successfully. In some of these cases there is not sufficient documentation to evidence that these reviews took place.’

115. The Panel also noted Person B’s ‘Investigation of further patients identified as part of Datix 445532, 44527, 44538 and 44520’ (same Datix numbered reports), in which she sets out her findings in relation to Service Users 1, 2, 3, 4, 5, 9, 10 and 11. In each instance there is found to be a lack of supporting documentation. In each case Person B has recorded the level of harm as ‘No harm’. The Panel noted that whilst the outcomes in realtion to harm had been recorded by Person B, they were based on a review and assessment of potential harm undertaken by Person A.

116. The Panel noted that the outcome of the Trust investigation is that no actual identifiable harm had been caused to all service users. The Panel’s review has identified that whilst there may not have been any discernible harm, there had been some unmonitored deterioration in these service users’ condition, and there had been an ever-present risk of harm, resulting from the Registrant’s failure to provide appropriate care.

117. The Panel noted the impact of the Registrant’s poor record keeping would have on fellow practitioners who have, as a result, been unable to rely upon the accuracy or completeness of records made by the Registrant. More importantly, in the absence of any notes, any empirical information, and any evidence of an intervention, those fellow practitioners would have nothing on which to make an informed decision.

118. The HCPC has submitted that the Registrant’s acts and omissions are in breach of the following Standards of Conduct Performance and Ethics in force at the time of the matters alleged. Those are:
Standard 6.1 - You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.
Standard 6.2 - You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.
Standard 9.1 - You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
Standard 10.1 - You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.
Standard 10.2 - You must complete all records promptly and as soon as possible after providing care, treatment or other services.

119. The Panel appreciates that breach of those standards does not of itself result in a finding of serious misconduct, however breach of those standards is indicative of a failure to provide the appropriate standard of care. The Panel also appreciates that it is able to consider other standards beyond those suggested by the HCPC. The Panel has considered carefully the Registrant’s acts and numerous omissions and is of the view that they are in breach of those standards listed above.

120. In relation to the matters set out in the three limbs of Particular 1, relating to the service users identified in the three schedules, the Panel considered that the Registrant misconduct does amount to serious misconduct. The evidence is that the Registrant has consistently failed to make detailed, or any notes, of outcomes. The Registrant had failed to keep GPs informed and had failed to arrange appointments for reviews. This had continued over a considerable period of time and as evidenced by Person A, some service users identified in Schedule 3 and limb 1(c) had been left waiting for an unacceptable length of time for their reviews. The Panel considers that extent of the poor record keeping amounts to serious misconduct.

121. In relation to the matter set out in Particular 2, this is an isolated case, however the error of the date is consistent with the Regsitrant’s poor record keeping as identified in Particular 1. Had the Registrant checked the accuracy of his entry he would have noted the error in the date. More importantly had the Registrant made the entry immediately after his intervention with this service user, it would have informed those referencing his notes that this service user did not want any more home visits, only telephone consultations. The Registrant’s entry would have been the final noted position for this service user before his death. The lateness of the entry had caused much expending of time and energy in identifying the nature of the error. The Panel considers that this was a mistake and not dishonest but does amount to serious misconduct because of the unconscionable delay.

122. In relation to the findings the Panel has made in relation to Particular 3, relating to the delay in making a record of a visit in June 2019 until the following November, the same observations apply as those made by the Panel in realtion to particulars 1 and 2. A delay of five months is unacceptable and does, in the Panel’s view, amount to serious misconduct.

123. The Panel has therefore concluded that in relation to the matters found proven, namely Particulars 1, 2 and 3, they individually and collectively amount to serious misconduct. In other words, conduct with fellow practitioners would find deplorable.

Decision on Impairment
124. The Panel sought and accepted the advice of the Legal Assessor and took into account the HCPC’s submissions and the guidance issued by the HCPTS. The Panel noted that it was considering this issue of current impairment as of today. However, in order to assess the future risk of repetition going forward the Panel had to look back at previous conduct.

125. The Panel had been informed by the HCPC that there were no previous findings and no other issues or concerns arising from the Registrant’s practice, either before or after these events. The Panel was therefore able to treat this period of 2019 and 2020 as a discrete period of poor practice.

126. The Panel noted from Person B’s report that before taking up his post with the Army in June 2020, the Registrant had intended to work on the bank at Norfolk and Norwich Hospital. However, there is no information as to whether this position on the bank had materialised nor any evidence of the standard of his work after leaving Ipswich. Further, the Panel notes that Ipswich was intending to inform Norfolk and Norwich Hospital of its concerns. On this basis, the Panel has discounted the possibility that the Registrant may have practised since leaving the Trust on 17 April 2020.

127. The guidance given to the Panel indicated that it should first consider the personal component of its decision. In line with the principles set out in the case of GMC v Cohen [2008] EWHC 581 (Admin) the Panel has considered whether the misconduct found is capable of remedy; has been remedied; and whether there is a likelihood of a repetition of that conduct in the future. There is evidence that the Registrant had, during a limited period, demonstrated his ability to construct full clinical records. This supports the view that the misconduct is capable of being remedied. Further, arguably, the misconduct has been remedied during his period of supervised practice, albeit with close oversight.

128. The Panel appreciated that it had no information that would support the matters asserted by the Registrant in his letter to the ICP in September 2021. However, in regard to the issue of remedial steps and conduct in the future, the Panel took into account the following:
• The Registrant accepted that his practice had been below that required and considered that he should have made his recording keeping a higher priority.
• His personal circumstances at that time had put him under pressure.
• The impact of his work and his personal life had adversely affected his wellbeing.
• The Registrant had acknowledged that should he return to practice at the end of his Army service he appreciated that he would be required to undertake further training to bring his professional skills and knowledge up to date.

129. From this the Panel identified that the Registrant had undertaken some reflection on his behaviour and had gained some insight into his former failings, although this was extremely limited in its extent. The Registrant had not appreciated that it was his responsibility to maintain his wellbeing and it was in his service users’ interest that he did.

130. There was no evidence that the Registrant had taken any steps to ensure that should he encounter the same set of circumstances in the future he would not act the same way again. The Panel, whilst having acknowledged that the Registrant had gained some insight into his actions, noted with concern the extent to which the Registrant had focused on the effect this had on him. There was no evidence that he had adopted any measures to regain and maintain his wellbeing. In the absence of any evidence of any coping mechanism being put in place there remains a real risk of repetition in the future.

131. There is no evidence that the Registrant has fully addressed his former misconduct. The Panel considers that the Registrant has not fully reflected on his behaviour and has not gained a complete understanding the impact his actions had on others. The Panel has therefore concluded that the Registrant’s fitness to practice is currently impaired.

132. In relation to the public component, the Panel took into account the concern expressed by the Registrant’s four former colleagues at the discovery of the extent of the Registrant’s omissions and failings. This is indicative of how fellow practitioners would view the Registrant’s lack of care for vulnerable and failing service users. His lack of application to his role would be considered by fellow practitioners to have seriously undermined the collective responsibility of upholding and maintaining the standards of their profession.

133. Similarly, members of the public would be rightly concerned that a practitioner who had ignored the wellbeing of those under his care, and had been so neglectful of his responsibilities over such a long period of time, if he were allowed to continue in practice without some form of restriction on his practice. The Panel therefore finds that the Registrant is also impaired on the public component. To have not made such a finding, would, in the circumstances of this case, have brought the profession and the regulatory process into disrepute.

Decision on Sanction
134. The HCPC did not advance a position on the level of sanction to be imposed, as this was a matter for the Panel’s judgment. The HCPC, however, took the opportunity of bringing to the Panel’s attention the matters which the Panel may wish to take into account when considering what factors could be considered as aggravating and mitigating. The HCPC stressed the length of time over which the poor record keeping had taken place and that during this time there had been continuous repetition of the misconduct. The Panel was also reminded that the service users in this situation were particularly vulnerable and frail.

135. The Panel sought and accepted the advice of the Legal Assessor, and the Panel noted the guidance set out in the HCPTS Sanctions Policy. The Panel noted the submissions made by the HCPC. At this stage there was no further information or documentation placed before the Panel.

136. The Panel appreciated that it was required to adopt the minimum level of sanction that will provide the requisite level of public protection and that would also be in the wider public interest.

137. The Panel has no information in relation to the Registrant’s current level of wellbeing, there is therefore nothing to support the position that any restriction should also be made in the Registrant’s own interest.

138. The Panel was aware that sanctions are not intended to be a punishment but to provide the relevant level of public protection. Whilst a sanction is not intended to be punitive it may have a punitive impact on the Registrant financially and professionally. The Panel however considered that any such punitive impact that may be caused to the Registrant in this instance is outweighed by the public interest.

139. In undertaking its task, the Panel is at this stage able to take into account all information placed before it. The Panel noted that it had no references or testimonials that attest to the Registrant’s character. The information the Panel has from the Registrant relating to his actions and future intentions is limited.

140. The Panel is aware that there may be further information from the Registrant, but it is not before this Panel today. The information the Panel has, derives from the Presenting Officer who relayed details of email exchanges between the HCPC solicitors and the Registrant. The Panel also had the Registrant’s letter of 17 September 2021. In that letter to the ICP the Registrant requested that he be given the opportunity to return to his profession at the end of his term in the Army. The timing of receipt of this letter was unfortunate in that the Panel had already heard from and discharged the HCPC witnesses. Had this been presented to the Panel at the opening of the hearing this Panel would have had the opportunity to explore points raised in that letter with those HCPC witnesses.

141. To assist it in undertaking its task the Panel has identified the following mitigating and aggravating factors.

Mitigating
• The Panel noted that in his letter the Registrant had stated that he had not been successful in obtaining support and representation from his membership body, the British Dietetic Association (BDA), and if he had, would have been able to provide a larger cogent set of representations.
• There had been admissions made early in the HCPC process.
• There had been engagement with the HCPC process albeit limited in nature recently due to the Registrant’s current employment.
• There were no previous regulatory findings, and this is the only current HCPC referral.
• The Registrant’s professional conduct before May 2019 and since March 2020 has not been called into question by an employer.
• There was evidence of limited reflection and insight into his former misconduct.
• The Registrant had ‘pleaded’ with the ICP to be given the opportunity to retain his professional status and be able to return to his profession when he leaves the Army.
• The Trust had not identified any actual harm being caused to any service user.
• The extent of the Registrant’s failings were focused on the one issue of recordkeeping and did not appear to be more wide spread.
• The Registrant has acknowledged and accepted the need for further future retraining.

Aggravating
• The misconduct had taken place over a lengthy period.
• There was continuous repetition of the misconduct during that lengthy period.
• The Registrant’s behaviour had affected a large number of service users.
• There had been an ever-present risk of harm as a result of his behaviour.
• The service users affected by his behaviour were all vulnerable and frail service users.
• There had been persistent and consistent failings in his record keeping and such failings, including checking the date of entries, had an impact on fellow professionals as well as service users.
• The Registrant has not expressed any regret or remorse, nor has he provided any apology for his behaviour.
• The only representation this Panel has before it focuses very much on the Registrant’s problems and concerns rather than the impact his actions had on service users. There is therefore no evidence that he has fully reflected upon his previous failings.
• The Panel noted that in his letter to the ICP the Registrant had focused on the issues and problems he had encountered at that time in 2019 and the impact it had on him then. This disclosed a failure to identify and address any issues he may have had at that time with his own wellbeing.
• There was no evidence before this Panel of any steps taken by the Registrant to address and remedy his failings.
• There were no references or testimonials from fellow dietitians, friends, family, or colleagues in the military.
• There was no evidence of Continuing Professional Development (CPD).

142. Having undertaken this analysis, the Panel moved on to consider the requisite level of sanction to impose. The Panel considered that the matters found proven are too serious for it to take no further action. The process of mediation was not suitable in the circumstances of this case.

143. The Panel considered whether the imposition of a Caution Order (which allows the Registrant to continue working unsupervised) would be appropriate, and came to the conclusion that it would not for the following reasons:
• The matters found proven are too serious and the public interest would not be served by the imposition of this this level of sanction.
• This level of sanction provides no service user protection and in this case, where there is a risk of repetition, service users would be exposed to the risk of harm.

145. The Panel gave careful consideration to the issue of whether it was able to create conditions that would provide the appropriate level of service user protection. In this regard the Panel noted that during the period in question, the Registrant had been able to demonstrate his ability to perform his record keeping tasks properly only when under close oversight and supervision. The Panel came to the conclusion that it was not able to impose a Conditions of Practice Order for the following reasons:
• It was unknown if the Registrant was willing to comply with such conditions although the Panel did have evidence that at present the Registrant is unable to comply with any such conditions.
• Whilst the Panel appreciated that conditions should impact on a registrant and could be crafted in anticipation of employment, in this instance there was not only no employer willing and able to support the Registrant as a dietitian, further the Registrant is currently employed and not using his registration as a dietitian.

146. The Panel considered the terms of the Sanction Policy in relation to the issue of whether a period of suspension was appropriate in the circumstances of this case. The Panel considered that this level of sanction was appropriate in this instance where:
• there has been no finding of dishonesty;
• there is evidence of some, albeit limited, insight into the misconduct;
• there appeared to be a willingness to engage with his regulator and a desire to pursue his career at a later date.
• There was an expression of his willingness to undergo retraining at a date a future date when able to do so.

147. Before settling upon a period of suspension, the Panel considered whether a Striking Off Order would be proportionate, and came to the conclusion that it would not, given, as stated above, the factors of no finding of dishonesty and stated intention of engagement with the process of returning to the profession as a safe practitioner.

148. The Panel has therefore decided to impose a Suspension Order for the maximum period of twelve months. That period reflects not only the seriousness of the matters but also the practical circumstances of the Registrant at present. The Panel has not exercised its discretion to limit the time in which the Registrant can seek a review of this order. He is currently not working as a dietitian, but if his current circumstances change and he wished to obtain a review this Panel considered he should have the ability to do so.

149. This Suspension Order imposed for a period of twelve month is, in this Panel’s view, proportional and appropriate in all the circumstances of this case. The Suspension Order is imposed by this Panel to ensure public protection and in the wider public interest.

150. This Suspension Order will be reviewed before its expiration and the Registrant will at that time be required to provide representations to a reviewing panel, either to support the continuation of this order, or to assist the reviewing panel to consider a lower level of restriction. Whilst this Panel cannot tie the hands of that future reviewing panel, the Panel has taken the opportunity to list below matters which the Registrant may wish to consider and address in the next twelve months. Those are:
• Arrangement for the Registrant to be present facially over zoom at the first review of this Order which will be before its expiration in twelve months and twenty-eight days. Notice of that Review hearing will be given.
• Evidence of his ability to maintain and retain his wellbeing.
• Testimonials from what ever source which attest to the Registrant nature and character.
• Evidence of CPD work completed since April 2020.
• Detailed piece of writing in which the Registrant reflects upon his previous misconduct and considers this in the context of how it impacted on his service users and colleagues at the time and also in relation to how that reflection will influence his future conduct.
• Evidence of his understanding of how to obtain and engage coping strategies that he can deploy in the future to ensure that any personal and professional stressors do not adversely affect his professional conduct.

The Registrar is directed to suspend the registration of Mr David 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
Service and proceeding in absence of the Registrant
The Panel received legal advice on the issue of Notice of Hearing and proceeding in absence during which Legal Assessor referred the Panel to the terms of Notice of Hearing letter. She also directed the Panel to the matters which it had already given consideration at the start of this substantive hearing in relation to proceeding in absence of the Registrant.

The Panel noted that the HCPC included within that Notice of Hearing Letter to the Registrant information relating to the potential imposition of an interim order should the Panel impose a substantive Conditions of Practice, Suspension or Strike off Order.

The Panel checked that the Notice within the service documentation did contain this information, and having done so, confirmed that it considered the Registrant had been given notice of such application.

The Panel received confirmation from the Hearings Officer and the Presenting Officer that nothing further had been received from the Registrant since the start of this hearing. Those Officers had confirmed that there had been no contact with or made by the Registrant. This being the case, the Panel could assume that the same circumstances as were recorded under preliminary hearings remained the position in respect of the Registrant’s non-attendance.

The Panel considered that there was public interest in this Panel hearing an application for an interim order today. There was nothing further or different from the Registrant that would change the Panel’s position in proceeding in his absence and the Panel therefore decided to proceed in his absence.

Application
In light of the level of sanction imposed by the Panel, the HCPC made an application for an Interim Suspension Order to be put in place to cover the period of appeal and the period of the appeal process. This order it was submitted was necessary on two bases, first for service user protection and secondly in the wider public interest. The length of the order should be the maximum period of eighteen month. That period would cover the length of the appeal process should the Registrant lodge an appeal within the appeal period of twenty-eight days.

Decision
The Panel sought the advice of the Legal Assessor and referred to the terms of guidance on Interim Orders imposed following a subsentence order being made, and this guidance was featured within paragraphs 133 onwards of the Sanctions Policy issued by the HCPTS.

The Panel considered that an order was necessary for public protection given its findings in relation to potential service user harm and the risk of repetition. The Panel further considered that an order was required in the wider public interest to uphold standards of conduct and to maintain the professions reputation.

In relation to the imposition of an interim conditions of practice order the Panel identified the same difficulties of exercising this level of restriction, namely identifying an appropriate level of supervision and oversight and most importantly how this would be effective when the Registrant was not using his registration and was serving in the military.

The Panel has therefore concluded that the only appropriate and proportionate measure in this instance was the imposition of an Interim Suspension Order. Given the time that an appeal may take, the Panel has exercised its discretion and imposed this order for the maximum period of eighteen months.

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001 (as amended), 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 David Brown