Mrs Dawn Earp

Admissions
1. After the Allegation was read out, Ms Shah, on behalf of the Registrant indicated that particulars 2 and 5, in respect of Patient L only, were admitted.

Background

2. On 14 April 2020 the HCPC received a referral from a registered pharmacist, Mr LI, of Springpharm (‘the Pharmacy’), raising concerns that prescriptions sent to his Pharmacy to be dispensed had been altered or in some cases, produced without the knowledge of the prescriber in whose name and NMC registration number they had been written.

3. The background to this concern arose as the Pharmacy, at the time, dispensed prescriptions for an aesthetics company, JB Aesthetics Limited, trading as Aesthetics Associates (“AA”). The director of AA, Mr BB had called Mr LI to say that a number of original prescriptions written by Ms KR had been lost. It was agreed that copies of those prescriptions, which had been supplied to the Pharmacy electronically, would be sent to the prescriber, KR, with a request that she counter-sign them.

4. When Ms KR was provided with 24 copy prescriptions and asked to counter-sign them, she responded that 17 of the prescriptions had been altered to obtain more Azzalure than she had prescribed, and that she had not written six of the prescriptions. Thereafter Ms KR was put in touch with Mr LI at the Pharmacy, where Ms KR explained the basis for her concerns. Ms KR said she would never prescribe Azzalure as a ‘dual’ prescription, but would write ‘two’. Ms KR further informed Mr LI that as she had not conducted face to face consultations with a number of the patients for whom prescriptions had been written, and she had not written those prescriptions.

5. Following investigation, based on the evidence provided by Ms KR, Mr LI and Mr BB, the HCPC brought the allegation set out above.

Evidence of Mr LI, Registered Pharmacist at Springpharm

6. Mr Molloy, on behalf of the HCPC called evidence from Mr LI. He confirmed his written statement, in which he set out his conversations with Mr BB and Ms KR as outlined above. He stated that it was very concerning that Ms KR did not remember consultations with a number of patients, for whom prescriptions had been issued in her name. He concluded that the Registrant appeared to have forged prescriptions, meaning that medication had potentially been given to patients who had not had a consultation with an authorised prescriber.

7. In his oral evidence, Mr LI stated that it makes no difference, in relation to Azzalure, whether the quantity on the prescription is ‘dual’ or ‘two’; in either event, two vials would be dispensed. If the prescription stated ‘dual’ and the quantity was written as ‘two’, then four vials would be dispensed.

Evidence of Ms KR, Nurse Prescriber

8. Mr Molloy called Ms KR, a nurse prescriber registered with the NMC. She confirmed that following the Registrant having referred her to the NMC in relation to this matter, the NMC had concluded that there was no case to answer in relation to her conduct.

9. Ms KR confirmed her written statement. In that she set out that she had received a letter from AA on or around 21 March 2020, informing her that a number of original prescriptions had been lost, and asking her to counter-sign print outs. She had sent a copy of the letter to the Registrant, who, according to Ms KR, responded “admitting the forgery and apologising”. In text messages at the time, Ms KR wrote: “I didn’t write a couple of these scripts” and “You’ve also added dual to some of the scripts that were only having one or two areas”. The Registrant replied: “Sorry [KR] [Patient L] wanted his armpits doing but felt embarrassed to have a consultation and I didn’t have enough stock in, sorry I should have asked you”. Ms KR replied “There’s a couple more I haven’t written though Dawn” to which the Registrant replied: “[KR] I’m sorry I was worried about being busy at Christmas and having enough stock, I’m sorry I should have asked you I’m completely in the wrong what can I say other than apologize. Sorry [emoji] I know it’s so wrong x” [sic].

10. Ms KR set out that a number of the prescriptions had been altered by adding the word ‘dual’, meaning that the Registrant sought to obtain two vials of Azzalure instead of the one prescribed. Ms KR said in her statement, and in her oral evidence, that she never writes the word ‘dual’ when she prescribes this. She writes either ‘one’ or two’ in the quantity column. She said ‘dual’ is not in her handwriting, and that in relation to Patient CC ‘dual’ is written alongside ‘two’. Ms KR’s evidence was that she had prescribed two vials for Patient CC, but the prescription had been altered so that it appeared four vials had been prescribed. She said this was too much for one patient and she would never prescribe that amount for a patient.

11. Ms KR went on to give examples of prescriptions that had not been written by her and where her signature had been forged. Ms KR stated that during the HCPC’s investigation, she was sent copies of further prescriptions dispensed by a different pharmacy. A number of those had been amended or forged altogether. The changes again included adding ‘dual’ so that double the prescribed quantity was dispensed.

12. In cross-examination, it was put to Ms KR that she would write prescriptions for patients with whom she had not conducted a consultation. Ms KR did not accept this. She gave evidence that when she first started working with the Registrant, remote prescribing was permitted by the guidelines. When asked about text messages in which she had agreed to write prescriptions for the Registrant, her partner, T and, T's sister, L, Ms KR said that they had all had face to face consultations with her previously. Also, the guidelines at the time permitted the use of a third party in place of a face-to-face consultation, and so the Registrant was used as a third party. She explained that she would write repeat prescriptions for patients whom she had seen within the previous 6 months, without seeing them again. Ms KR further refuted the suggestion that she had agreed to a practice whereby the Registrant wrote prescriptions and brought them to Ms KR to sign.

13. Ms Shah put to Ms KR that where she had identified amendments to the various prescriptions, the writing was in fact hers. Ms KR denied this, and further completely refuted the suggestion that she is only now claiming that she did not sign some of the prescriptions in order to protect herself as she knew that the way she and the Registrant had worked was not in accordance with AA’s policy. She said that the ‘R’ in her signature ends with a straight line, so she can see which prescriptions she did not sign.

14. In response to questions from the Panel, Ms KR stated that she had at no time signed prescriptions that had been filled out by the Registrant. With regard to an assertion made by the Registrant in her statement, that she, Ms KR, would write prescriptions for one or two more vials of Botox than required for a patient, so that the Registrant had some at home for her next clinic, allowing patients to have treatment on the same day that prescriptions were issued, Ms KR strongly disputed that this had been done. She also disputed what the Registrant said about her, Ms KR, being present when clients were injected, straight after prescriptions had been written.

Statement of BB, Commercial Director, Aesthetic Associates

15. Mr BB’s statement explained that AA connects practitioners in the aesthetics industry with prescribers. Images of prescriptions are sent to AA, and then onto the dispensing pharmacy, with the paper copies forwarded within 72 hours. He explained that in March 2020 Mr LI had contacted him and informed him that paper copies of a number of Ms KR’s prescriptions had not been received. It was arranged for copies to be sent to Ms KR, and thereafter he had spoken to her. She raised concerns that she did not recognise a number of the prescriptions. Mr BB had therefore put her in touch with Mr LI.
Registrant’s evidence

16. The Registrant gave evidence. She confirmed her written statement. She explained that for her business, Perfecto Aesthetics, which she started in 2016, she needed a prescriber to carry out a face-to-face consultation with a client and write a prescription, then she could get Botox for the client. However, as Ms KR could only work at the Registrant’s clinic on Wednesdays, she and Ms KR had agreed that for clients who could not attend on Wednesdays, Ms KR would issue a prescription without a face-to-face consultation. The Registrant further gave evidence that Ms KR had prescribed Botox for her, her partner T and T’s sister L, without ever having had a consultation. Text messages in which KR agreed to provide them with prescriptions were provided to the panel, dated 11 December 2017.

17. The Registrant stated that she would often write out the prescription and take it to Ms KR to sign when they were both working at the hospital. By way of example, she confirmed that she had written the prescription for Patient H, for whom Azzalure 125 units Dual was prescribed, in a quantity of ‘two’. She had given it to Ms KR who had signed it.

18. The Registrant admitted that she had written and used Ms KR’s details, including her signature, in the prescription for Patient L, who was the Registrant’s son. She said “I went to the office, but because my son wanted treatment for hyperhidrosis Ms KR said she wanted to see him. She didn’t sign it”. The Registrant admitted to forging Ms KR’s signature on this prescription. She said she was now devastated she had done so.

19. In her statement, in relation to the other patients set out in Schedule B, which relate to Particular 2, the Registrant admitted that she wrote the details on these prescriptions, but said that she took them to Ms KR, in her office at the hospital, where Ms KR signed them.

20. When taken to text messages, in response to a message from Ms KR which said “There’s a couple more I haven’t written though Dawn”, and to her reply: “[KR] I’m sorry I was worried about being busy at Christmas and having enough stock, I should have asked you I’m completely in the wrong what can I say other than apologize…”, the Registrant said that this message was focussed on Patient L and being worried about stock. When asked if she had written a couple more prescriptions which had not been signed by Ms KR, the Registrant said she had, but they were not in the bundle.

21. The Registrant denied adding ‘dual’ to any prescriptions signed by Ms KR or making any other amendments.

22. Under cross-examination, picking up on the stock issue, and the Registrant’s assertion that she had written prescriptions without Ms KR’s knowledge because she was low on stock, it was put to her that she was not permitted to carry stock. The Registrant said she was not aware of that at the time. She accepted she knew she needed a qualified prescriber to prescribe medications, and that medications were prescribed for particular patients. She also accepted that if the prescriber had written ‘one’ as the quantity on the prescription, then the intention of the prescriber was that one vial would be dispensed. It was put to the Registrant that she had agreed she was not therefore entitled to hold stock, and the Registrant said “yes”. Mr Molloy asked the Registrant to confirm her understanding that she could only receive the amount prescribed, to which she replied “yes, but there was an arrangement with Ms KR to put extra on [prescriptions] for top-ups”.

23. In response to further questions the Registrant confirmed that she was holding medication and would use it on a person other than the named person for whom it had been prescribed. It was put to her that she must have known that was completely wrong and against the rules. The Registrant said she did not know at the time.

24. It was put to the Registrant that Ms KR would not write ‘dual’ on prescriptions, but the number of vials, one or two etc. The Registrant replied “well yes, two dual packs…”. The Registrant disputed that if Ms KR wanted her to have four vials, she would have written ‘four’ as the quantity. The Registrant further disputed that she was the person who benefitted from obtaining and holding extra medication as stock, notwithstanding her repeated referrals in text messages to ‘stock’. The Registrant did not accept that anything above what was prescribed for a particular patient was stock she should not have held. She stated that it was ok to hold one or two vials for top-ups.

25. Mr Molloy went on to suggest that the Registrant’s handwriting, specifically letters ‘e’ and ‘a’ were different to Ms KR’s, and as such it could be seen that she had added ‘dual’ and ‘bacteriostatic’ to prescriptions as alleged. The Registrant disputed that there was any difference. When taken to the prescription for Patient P, the Registrant denied that she had added ‘dual’ and ‘0.9% Bacteriostatic saline 1 x 30ml’ after the prescription had been signed by Ms KR. The Registrant accepted that she had not challenged Ms KR when Ms KR said by text message that there were other prescriptions (beyond Patient L) that she, Ms KR, had not written.

Evidence of Ms LC, sister of the Registrant’s previous partner

26. Ms LC gave evidence. She said that she had received Botox treatments from the Registrant and that she had never had a consultation with Ms KR or any other prescriber.

Closing submissions

27. Mr Molloy referred the Panel to the evidence matrix, which he submitted may assist the Panel when determining the facts. He reminded the Panel of the evidence of Ms KR, who had denied writing ‘dual’ on prescriptions, and that the evidence of Mr LI, which was that the effect of this was to obtain double the amount of medication. In relation to misconduct, he submitted that the Registrant’s conduct had breached standards 1, 6 and 9 of the HCPC’s Standards of Conduct Performance and Ethics. In relation to impairment, Mr Molloy submitted that there had been a failure by the Registrant to accept or address her misconduct, and as such there remained a risk of repetition, meaning that the Registrant is currently impaired.

28. Ms Shah, on behalf of the Registrant, reminded the Panel of the test for dishonesty in Ivey v Genting Casinos, and submitted that whether the Allegation can be proved depends entirely on whether the Panel accepts the word of Ms KR or the evidence of the Registrant. To this end, the Panel could take into account the evidence before it of the Registrant’s good character. The Registrant had outlined various ways in which Ms KR did not follow the applicable protocols. She submitted that the Registrant’s evidence that Ms KR would sign prescriptions the Registrant had written undermined the credibility of Ms KR. She submitted that the Panel should consider whether Ms KR was reliable enough for the HCPC to prove its case. Further, Ms Shah submitted that the Registrant had been frank and open in her evidence and had acknowledged all her failures, indeed failures beyond those alleged. Beyond the allegation in relation to Patient L, she invited the Panel to find the remaining particulars not proved.

29. Moving to misconduct and impairment, Ms Shah invited the Panel to consider whether any misconduct it found was serious enough to mean that the Registrant is currently impaired. She submitted that the Registrant was immediately apologetic when confronted by Ms KR, and that she had demonstrated remorse and insight, such that any risk of repetition was very low. The course in Ethics undertaken by the Registrant demonstrated an awareness that she needed to recalibrate her thinking process. As to a finding of impairment in the public interest, Ms Shah submitted that an informed member of the public would be aware of the Registrant’s insight and remorse.

Decision on Facts

Legal Advice

30. The Panel accepted the advice of the Legal Assessor which was that:

⦁ The burden of proof is on the HCPC, and the standard of proof is the balance of probabilities;
⦁ A separate finding should be made on each particular. The Panel needs to be satisfied, on the evidence before it, that the HCPC has discharged the burden of proof;
⦁ The starting point is unchallenged documentary evidence - Dutta v GMC – [2020] EWHC 1974 (Admin) as that is likely to be more reliable than recollections;
⦁ Witness evidence should be assessed in terms of its credibility and reliability. The Panel may find that a witness’s evidence is reliable in some respects but not others. Reasons need to be given;
⦁ The weight to attach to hearsay evidence is a matter for the Panel. Factors to take into account include the source of the evidence, the way it was obtained, and the extent to which it is consistent with other evidence;
⦁ Evidence as to the Registrant’s good character is admissible at the facts stage when assessing the credibility of her evidence - Wisson v HPC [2013] EWHC 1036 (Admin);
⦁ When determining dishonesty, the Panel should apply the two stage test set out in Ivey v Genting Casinos Ltd [2017] UKSC 67.

31. The Panel began with an assessment of the unchallenged documentary evidence. It noted the letter from AA sent to Ms KR on around 21 March 2020. That informed her that the pharmacy used by AA had no record of a number of original prescriptions. Ms KR was therefore asked to sign printed copies of digital images of prescriptions and return them to AA, so that the issue could be resolved.

32. The evidence (which was not disputed) was that in practice, Ms KR would leave the prescriptions with the Registrant, who would send them to the pharmacy to be dispensed. There was a question over when Ms KR became aware that in the first instance, the Registrant sent photographs followed up by originals, however that was not an issue the Panel needed to resolve. What was relevant was Ms KR’s response to that letter. She did two things. KR emailed AA and asked to be removed from their list of prescribers, as she would no longer be prescribing for the Registrant, and she messaged the Registrant informing her of the letter and said that she (Ms KR) had not written ‘a couple’ of the prescriptions that she had been asked to re-sign.

33. The message exchanges that took place thereafter were, in the Panel’s view, very weighty evidence as they took place as soon as the issue was raised, and provide contemporaneous evidence of the respective responses of the Registrant and Ms KR.

34. The Registrant replied saying she was “not sure what they are on about’ but she would put in the post what she had. Ms KR replied that they were all from November/December. Ms KR sent a photo of a prescription for Patient L which she had not written, and sent a further message saying “You’ve also added dual to some of the scripts that were only having one or two areas”. The Registrant replied saying her son “wanted his armpits doing but was too embarrassed to have a consultation and I didn’t have enough stock in, sorry I should have asked you”.

35. In light of this, the Panel found that Ms KR had been alerted to a practice which she had been completely unaware of, and which put her registration as a prescriber at significant risk. Her concern was such that she immediately stopped working with the Registrant. In a subsequent conversation with the pharmacy, which was summarised in the email from Mr LI to the HCPC on 14 April 2020, it is reported that the Registrant had been altering prescriptions and the quantities of medication. It was reported that the Registrant had falsified prescriptions without the knowledge of the prescriber. This was based on Ms KR’s conversation with Mr LI. The Panel acknowledges that these are effectively the allegations the Registrant now faces and that this email was based purely on a conversation with Ms KR. However, this email is evidence that the concerns set out by Ms KR in her witness statement, and the events as she described them in her oral evidence, were the same as the concerns she originally raised.

36. Messages which the Panel had sight of gave the Registrant’s initial response. In relation to Patient L, a prescription that the Registrant admits having written herself, the Registrant apologised to Ms KR, and said that her son was too embarrassed to have a consultation. It concluded “sorry I should have asked you”.

37. Ms KR again raised the issue that there were more prescriptions that she had not written. The Registrant replied that she was sorry, she was worried about being busy at Christmas and not having enough stock. She wrote “I should have asked you I’m completely in the wrong what can I say other than apologize. Sorry I know its so wrong”.

38. On the basis of this exchange, the Panel found that the Registrant had admitted to writing prescriptions and signing them in Ms KR’s name, using her NMC registration number, as the prescriptions would need a signature in order for the pharmacy to dispense them. In her written statement, she denied forging Ms KR’s signature, save in relation to Patient L.

39. The Panel went on to assess the Registrant’s oral evidence. In her oral evidence, given under affirmation, the Registrant said that she had asked Ms KR to write a prescription for her son, and because her son wanted treatment for hyperhidrosis Ms KR said she wanted to see him. This contradicted her message, sent at the time, quoted above, in which the Registrant said she should have asked (and by inference, did not). The Panel determined that the text messages were close to the time of events and sent before the HCPC’s investigation had commenced. The Panel found the text messages more reliable for these reasons. The text messages also provide clear evidence that it was the Registrant who wrote the entire prescription, as the Registrant did not challenge Ms KR when Ms KR sent it as an example of a prescription she had not written. Indeed, the Registrant admitted in her written statement that she wrote this prescription and the body of all the prescriptions in Schedule B (but denied having put Ms KR’s details and signature on the remainder).

40. The Panel went on to note that the oral evidence of the Registrant was inconsistent with a normal reading of the text messages. The Registrant maintained that her messages had related solely to Patient L, and that was what she was sorry for. The Panel found that in fact she was worried about not having enough stock, as this is what she plainly says. So her apology related to having written and signed more prescriptions. The Registrant’s denial of this meant that her evidence was implausible. It was further implausible that the Registrant said that whilst she had written a couple of other prescriptions using Ms KR’s details, these were not in the bundle. The prescriptions of concern, which were the subject of the messages, and those which have now formed the evidence before the Panel, were the ones that the Registrant apologised for, on an everyday interpretation of the words used. The Panel found that the Registrant’s oral evidence was completely inconsistent with the documentary evidence here. It also found that the Registrant’s version of events had changed over time.

41. The Panel also found the Registrant’s oral evidence implausible in so far as she maintained that she was not aware that she was not permitted to hold stock to use on other clients. She did not accept that medication prescribed for a particular client should only be used on that client. Given her Band 7 role as an ODP, with additional specialist training in IV therapy, the Registrant must have been aware of the strict controls around prescription medication.

42. Overall, there were a range of inconsistencies in the Registrant’s evidence, both between her oral account and the documents, and between her oral account and written statement, and within her written statement. There would be little to be gained from setting out each one, but by way of final examples, at paragraph 20 of her statement the Registrant said that at the time of events leading to these concerns she was not aware that clients needed a face to face consultation with a prescriber (supporting the general gist of her case that Ms KR was responsible for any poor practice that may have taken place), whereas at paragraph 57 she states that “I was fully aware that this [face to face consultation] should take place”. At paragraph 21 she puts the responsibility of sending the prescriptions to AA onto Ms KR, yet in her text messages she accepts that she had taken responsibility for this. Indeed, the evidence overall was that Ms KR would have no further involvement in a client once she had seen them and written a prescription. These inconsistencies in particular were in the Panel’s view, indicative of confusion arising in the context of the Registrant’s attempts to both blame Ms KR and undermine her evidence.

43. In conclusion, the Panel found that the Registrant was an unreliable witness, on whose account it could place little weight. Given this finding, and noting that the testimonials attested to her good character, the Panel determined that it would place no real weight on that at the facts stage. Such evidence would not be of assistance to the Panel with regard to the propensity to act as alleged. The Panel would form its own judgment on the evidence before it.

44. The Panel carefully compared the witness statement and oral evidence of Ms KR to the concerns she raised at the time with the Registrant, Mr LI and AA. The Panel noted that her account has remained consistent. Whilst she acknowledged, under cross examination, that she must have been aware of the process adopted by the Registrant of sending photos of prescriptions initially, before she got the letter from AA, in other respects, her account has been unchanged throughout. Indeed, the Panel was of the view that, because Ms KR was accepting of the possibility that she had become confused in one part of her statement, that this was an indication that she was a genuine and honest witness. She did not have a reason to be dishonest. Whilst the Registrant had sought to portray Ms KR in such a light, the Panel was not persuaded. It considered that whilst not every aspect of the practice of the Registrant’s business had been by the book, Ms KR’s concerns that prescriptions in her name had been forged took matters to a new and very concerning level. Her response, as outlined above, was of a professional who could not condone such practices. The Panel considered her account credible, and therefore more likely than that of the Registrant to be reliable where there were conflicts of evidence.

45. The Panel considered that the evidence of Mr LI was credible and reliable. He was independent, and his concerns were such that he reported the matter to the HCPC.

46. The Panel noted that the evidence of Mr BB was agreed evidence. As such, whilst it was hearsay, as Mr BB had not attended to give oral evidence, the Panel considered that it was fair to admit his evidence. It determined that it would give this evidence only slightly less weight to that of Mr LI, given that neither witness had direct knowledge of the Registrant’s practice.

47. The Panel did not receive much evidence from Ms LC, and this made assessing her credibility difficult. Whilst she was extremely confident in her recollection that she had never had a consultation with Ms KR or any prescriber, the Panel bore in mind that she had been receiving treatment from the Registrant since at least 2017, that memories even in honest witnesses fade and become inaccurate over time, and that it should not take into account demeanour (confidence in recollection) when assessing credibility. The Panel noted the direct conflict between her evidence and that of Ms KR, whom it had found to be an honest and reliable witness. This was a conflict that the Panel could not resolve, nor did it need to, in order to make findings on the Allegation. This was because there was no particular relating to consultations with a prescriber.

48. Having found that Ms KR was a reliable and credible witness, and that the Registrant was not, the Panel moved to make findings on the Allegation.

Particular 1 - Proved

49. The Panel noted that from the outset, in the text exchanges, one of the issues Ms KR referred to as being of concern, was that the Registrant had altered some prescriptions by adding the word ‘dual’. In her written statement, Ms KR said 17 of 24 prescriptions sent to her by AA had been altered to obtain more Azzalure than she had prescribed, by the word ‘dual’ having been added. She said that there is a quantity column, and in that she would either write ‘one’ or ‘two’ depending on the quantity needed. She would never write the word ‘dual’. By adding the word ‘dual’ the Registrant had obtained two vials instead of one. In her oral evidence Ms KR confirmed this, and said the word ‘dual’ is not in her handwriting. She also noted, in her statement, that in the prescription for Patient CC, ‘dual’ is written alongside ‘two’ in the quantity column. Ms KR said she would never prescribe such a large amount of Azzalure for one patient.

50. The Panel accepted the evidence of Ms KR, that it was not her practice to use the word ‘dual’. Her evidence was also that on the prescriptions in Schedule A, she had not written Bocouture. The Panel concluded that more likely than not the Registrant had therefore altered all the prescriptions in Schedule A by adding the word ‘dual’. The fact that this would mean she received double the quantity prescribed was consistent with her evidence in the text messages that she held stock, and consistent with the practice she described of providing treatment to clients on the day of their consultation with Ms KR. The Registrant would have needed to have extra Botox in stock in order to work that way. The Panel was also satisfied that in the prescriptions in Schedule A which included Bocouture, this had been added by the Registrant.

Particular 2 - Proved

51. The Registrant had admitted this particular in respect of Patient L only. She stated in both her written and oral evidence that she had written the content of the prescriptions, and taken them to Ms KR at the hospital, for Ms KR to sign. She said she knew at the time (the time Ms KR confronted her by text) that the only one she had written and signed was Patient L.

52. As set out above, this is inconsistent with a normal reading of the text messages. Further, Ms KR had, as part of her written evidence set out a table where she commented on each of these patients’ prescriptions, and explained how she was confident that she did not create them. She said she had not worked on 9 or 12 December 2019, in the Registrant’s clinic, so, in addition to the handwriting and signature not being hers, she was sure that she had not written the prescriptions for Patients G, K and HH (in addition to L). Patient H’s prescription is for two dual packs of Azzalure, which Ms KR said was a quantity she would never prescribe for one patient. As for Patients J and K, Ms KR relied on the handwriting and signature not being hers.

53. The Panel preferred the evidence of Ms KR for all the reasons set out in relation to credibility and reliability above. It had no difficulty finding that Ms KR was not working on the dates she outlined, as her evidence on that had not been challenged. This, combined with the text messages, provided weighty evidence that Ms KR had not written or signed prescriptions for Patients G, K and HH. The Panel further accepted Ms KR’s evidence that she would never prescribe 4 vials, as she was not challenged on that, meaning that the particular was proved in respect of Patient H. Given these findings, and the Panel’s view that Ms KR was a more reliable witness than the Registrant, who had given contradictory evidence in relation to this particular, the Panel found, more likely than not, that Ms KR did not write or sign the remaining prescriptions for Patients I and J. The Panel therefore found this particular proved.

Particular 3 - Proved

54. The Panel had already found that these prescriptions had been altered by the addition of the word ‘dual’, and it followed that alteration of prescriptions was something the Registrant frequently did. Ms KR’s evidence was that ‘Bacteriostatic saline’ was not in her handwriting. The Panel, whilst acknowledging that it had no particular expertise in the analysis of handwriting, considered that there were differences between the writing of Azzalure and the quantity ‘one’ on the top line of each, and the remaining writing, in particular in relation to the letters ‘a’ and ‘e’. It considered that there was consistency in the difference, i.e. each version of ‘Bacteriostatic saline’ and the corresponding ‘one’ had the same similarities. Taking the evidence together, and bearing in mind the earlier findings and the Registrant’s propensity to alter prescriptions, the Panel was satisfied, on the balance of probabilities, that particular 3 was proved.

Particular 4 - Proved

55. The Panel first needed to ascertain the Registrant’s subjective state of mind. Did she genuinely think that altering prescriptions was acceptable or was she aware that it was wrong? The Panel determined that as an ODP, with further training in IV therapy, and who had worked in this role for over 20 years, latterly as a band 7, the Registrant was aware of the strict controls in relation to prescription medication. She was aware therefore of the importance of the integrity of prescriptions, and she knew that she should have gone back to the prescriber if she wanted more of any medication prescribing. The Registrant knew, as confirmed under cross examination, that by adding ‘dual’ she would get double the prescribed medication quantity. The Panel concluded that the Registrant was well aware that altering prescriptions was wrong, and that she did so to obtain, through deception, medication that had not been prescribed.

56. The Panel asked itself whether such conduct was dishonest. It determined that knowingly altering prescriptions, to get additional quantities and types of medication, was dishonest by the standards of ordinary decent people.

Particular 5 - Proved

57. The Registrant had created prescriptions using Ms KR’s details and signature. In the text messages she apologised, saying she knew it was so wrong. The Registrant had created prescriptions that she passed off as prescriptions written by Ms KR, intending the pharmacy to believe that they had been written by Ms KR, and dispense the medication. Paragraph 19 of the Registrant’s statement sets out her understanding that it is not illegal for an ODP to write details onto a prescription. It follows that she was well aware where the line was, namely that this was the most that she was permitted to do. She admitted in relation to Patient L that by forging Ms KR’s signature, she had been dishonest. She said she did it as she thought she would get away with it. The Panel had found that she had been the one to write Ms KR’s signature on all the Schedule B prescriptions.

58. The Panel concluded that ordinary decent people would not hesitate in saying such conduct was dishonest, given the clear intention to deceive.

Particular 6 - Proved

59. For the same reasons set out at Particular 4, the Panel found that the Registrant was aware that adding to signed prescriptions was wrong, and that she did so with the intention of deceiving the pharmacy and getting medication that had not been prescribed. The Panel again had no hesitation in finding that this conduct would be considered dishonest by the standards of ordinary decent people.

Decision on Grounds

60. The Panel accepted the advice of the Legal Assessor:

⦁ Whether the facts found amount to misconduct is a matter for the Panel's independent judgement. There is no burden or standard of proof;
⦁ There is no statutory definition of misconduct, but the panel may have regard to guidance given in Roylance v General Medical Council (No.2) [2000] 1 AC 31: Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed.....in the particular circumstances.
⦁ In Doughty v General Dental Council [1988] AC 164 misconduct was described as conduct that has fallen short, by omission or commission, of the standards of conduct expected among dentists, and that such falling short as is established should be serious.

61. The Panel began by considering the HCPC’s Standards of Conduct, Performance and Ethics with a view to establishing the extent to which the conduct it had found proved fell short of those standards. It noted the requirement for registered professionals to accept responsibility for their conduct, as set out in the introductory section:
As a registrant, you are personally responsible for the way you behave. You need to use your judgement so that you make informed and reasonable decisions and meet the standards. You must always be prepared to justify your decisions and actions.

62. This was in the Panel’s view highly relevant as the gist of the Registrant’s response to the Allegation had been to seek to pass responsibility onto Ms KR, notwithstanding that following a referral to the NMC made by the Registrant, Ms KR had been found to have no case to answer.

63. The Panel then went on to consider the standards, and in doing so bore in mind the submissions made by Mr Molloy as to the standards it was submitted had been breached. The Panel was cognisant that the Registrant’s conduct did not take place in her role as an ODP. Nonetheless, it arose in a clinical setting and engaged values and behaviours that go to the fundamental aspects of professionalism.

64. Standard 1 requires registrants to ‘Promote and protect the interests of service users and carers’. The Panel was of the view that by administering prescription medication which she had not obtained through the proper route, but through adding to or forging prescriptions, the Registrant had breached standard 1.4, which required her to ensure she had appropriate authority before providing treatment. Through forging a prescription for her own son, and administering treatment to him, when she knew he had not had a consultation with Ms KR, the Registrant’s conduct had fallen short of 1.7 in that she had failed to maintain appropriate boundaries. The Registrant’s conduct fell seriously short of expected standards.

65. Standard 6, which requires registrants to ‘Manage risk’ was, in the Panel’s view clearly engaged. The Registrant’s conduct had fallen short of standards 6.1 and 6.2:

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

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.

66. By administering prescription medication to clients for whom they had not been prescribed, and hence suitability/contraindications assessed, the Registrant had put her clients, and also her son at an unacceptable risk of harm. Given the number of instances where this had taken place, combined with the number of instances where prescriptions had been altered and double the amount of product obtained and potentially administered, the Panel had no confidence that the Registrant would not repeat this conduct in her role as an ODP. The conduct is indicative of a practitioner who thinks they know better and taking matters into their own hands. The clearest example of this relates to the Registrant’s son, Patient L. The Registrant had proceeded to forge a prescription so that she could treat her son without any assessment having taken place. This posed a significant risk of harm and fell far short of the required standards.

67. Finally, the Panel considered that Standard 9 ‘Be honest and trustworthy’ had been breached. The Panel had found all three Particulars of dishonesty proved. Honesty and hence trust is a fundamental value of registered professionals, and here there had been over 40 incidents of deceit over an 8-month period. The conduct was calculated and planned. This was extremely serious dishonesty, falling far short of the expected standard.

68. The Panel determined that in relation to all of the particulars, the Registrant’s conduct fell seriously short of the standards expected and amounted to misconduct.

Decision on Impairment

69. The Panel accepted the Legal Assessor’s advice and was aware:

⦁ The existence of impairment is a matter for the panel’s own independent judgment or assessment;
⦁ In assessing impairment, the panel is looking at the past to assess the present, as set out by Sir Anthony Clarke in Meadow v General Medical Council [2006] EWCA Civ 1390:
“In short, the purpose of fitness to practise proceedings is not to punish the practitioner for past misdoings but to protect the public against the acts and omissions of those who are not fit to practise. The FPP thus looks forward not back. However, to form a view as to the fitness of a person to practice today, it is evident that it will have to take account of the way in which the person concerned has acted or failed to act in the past”.
⦁ In Cohen v General Medical Council [2008] EWHC 581 Mr Justice Silber suggested a 3 fold "test"; the Committee may be assisted by asking itself: Is the conduct of the Registrant remediable? Has it been remedied? Is it highly unlikely to recur?
⦁ In Council for Healthcare Regulatory Excellence v NMC and Grant [2011] EWHC 927 (Admin), it was suggested panels assess impairment in the terms outlined by Dame Janet Smith in the report into the Fifth Shipman Inquiry, and it was emphasised that panels need to consider “whether the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances”.

70. The Panel began its consideration of impairment by considering what weight to give to the character references. It determined it would give them no weight as they described the Registrant as an honest person, and the Panel had found her not to be such. The Panel could not therefore place weight on anything the authors said.

71. The Panel then applied the ‘test’ from Cohen and started by considering whether the misconduct is remediable. All the misconduct was dishonest, and had been repeated over a sustained period of time. None had been a momentary lapse or spur of the moment decision, which was later regretted. Rather there had been a pattern of behaviour, which in the Registrant’s own words, in relation to the one incident admitted, was done because she thought she would get away with it. The misconduct therefore was attitudinal in nature. Further evidence of the Registrant’s propensity to lie had been demonstrated in the way she had conducted herself in these proceedings. The Panel had found that she had not been honest in her evidence and had sought to deny conduct which she had admitted in earlier text messages. The Panel concluded that it was highly unlikely that such misconduct was capable of remediation. This was primarily because continued denial in circumstances where the objective evidence made denial untenable indicated a deep-seated character flaw. Full acknowledgement of wrongdoing is the first step towards putting things right. Whilst the Registrant has admitted the wrongdoing in relation to Patient L, the Panel’s findings were of dishonesty on a much larger scale.

72. The Panel had regard to the Registrant’s acknowledgments in her statement and oral evidence that her conduct in relation to Patient L had been wrong, and some of the risks posed by it. In her statement she said:
I am deeply ashamed of the situation that I have found myself in. I have brought shame to my career as an ODP and to my family. I have three children and I have always wanted to be an excellent role model to them, but this investigation has completely shattered their perception of me, and I am deeply ashamed of this.

73. She relied on the introduction of electronic prescribing to reduce the risk of repetition, on the basis that “only the prescriber is responsible for prescriptions”. This gave the Panel no assurance that the Registrant would not seek to repeat her deception and forgery because she had learnt from her past errors.

74. The Registrant continued:
Working alongside a prescriber who is dishonest in her own actions does not give me the right to be dishonest myself. The way that I obtained the prescriptions without a face-to-face consultation. I was wrong and I am deeply ashamed of what I have done and how I have conducted myself.

75. Taking these together, the Panel considered that the Registrant has not accepted responsibility for her misconduct and continues to seek to blame Ms KR, who had no role in the deception, and who was so concerned by it that she immediately ended her working and personal relationship with the Registrant. The Registrant, in her oral evidence, admitted having written, and forging the signature on, a ‘minimal’ number of additional prescriptions, that did not appear in Schedule B.

76. It followed that the Registrant has not remedied her misconduct. The Registrant’s attempts to demonstrate some level of insight, were in the Panel’s view no more than superficial. The Panel was unable to accept that she understood why her misconduct was so serious, or the depth of the risks it posed, as she did not accept the extent of her wrongdoing. She had referred to undertaking a course in Ethics, but had this had a real impact on her, in the Panel’s view, the Registrant would, at this hearing, have accepted responsibility, rather than seeking to rely on what she alleged was poor prescribing practice by Ms KR, as an explanation for why she acted as she did. Any criticisms that could be made of Ms KR had no bearing on the Registrant’s dishonest conduct.

77. A factor that weighed heavily in the Panel’s determination that the misconduct had not been remedied, was that the Registrant had appeared to show remorse for, and articulate the risks consequent on, forging a prescription for her son, but had then repeated that dishonest conduct at later dates. As such, the Panel did not accept that the Registrant’s remorse was genuine. Nor had she developed any real insight, given her approach to these proceedings.

78. It followed that there was, in the Panel’s view a high risk of repetition of the misconduct, with consequent significant risks to members of the public. The Panel had no confidence that the Registrant would not repeat her conduct in her role as an ODP and in that context, administering medication to a patient, for whom it had not been prescribed, or administering more than the prescribed dose following amendment to the prescription, could have significant risks. Further, the Registrant’s disregard for the need to only administer prescription medication to the person for whom they have been prescribed, so that there is traceability through batch numbers, in the event of an issue with the product, means that she poses a further risk to the public in her role as an ODP. It followed that the Registrant had in the past, and was liable in the future, to put the public at unwarranted risk of harm.

79. The Panel determined that the Registrant is currently impaired on the personal component.

80. Moving to consider the public interest, and whether a finding of current impairment is required to uphold public confidence in the ODP profession and maintain professional standards, the Panel considered that the Registrant’s dishonest conduct had brought the profession into disrepute and had breached the fundamental tenet of honesty and integrity. This goes to the heart of the values of the ODP profession, as it is essential that the public are able to trust those who treat them with medication that can have serious adverse effects. The risk of such adverse effects materialising is high when such medication is administered inappropriately (without a valid prescription).

81. The Panel concluded that its finding that the Registrant’s deceptive and dishonest conduct, which was closely linked to clinical practice, and risked repetition, would cause an informed member of the public to be extremely concerned. Their trust in the profession would be seriously eroded and have the potential to impact on decisions to undergo surgery. Dishonest conduct of any type is likely to negatively impact on public confidence, but repeated dishonesty in the context of administering prescription medication without a valid prescription, was of a nature that had the potential to cause members to the public to take risks with their own health, by avoiding necessary treatment, because of an inability to trust those involved in the administration of medication.

82. The Panel determined that the Registrant was currently impaired on the public component, and a finding of impairment was required in order to uphold confidence in the ODP profession and maintain proper professional standards.

Decision on Sanction

83. It was submitted by Mr Molloy that in cases involving dishonesty a serious sanction is appropriate. He submitted that the aggravating features in this case include the repeated nature of the dishonesty and/or the pattern of behaviour. This indicates a greater risk to the public and also a lack of insight. Mr Molloy referred the Panel to the section of the Sanctions Policy (‘the Policy’) dealing with dishonesty, where it is noted that such conduct undermines public confidence in the profession and can impact on patient safety.

84. Ms Shah on behalf of the Registrant invited the Panel to read the Registrant’s letter of apology and bear in mind that the purpose of sanction is not to punish. Proportionality should be taken into account.

85. The Panel accepted the advice of the Legal Assessor that it should:

⦁ Have regard to the Policy and begin by considering whether there are any particular mitigating or aggravating features;
⦁ The Registrant’s rejected defence is a matter that can be taken into account at this stage: Yusuff v General Medical Council [2018] EWHC 13 (admin) and Sawati v General Medical Council [2022] EWHC 283 (Admin)
⦁ Then it should work through the sanctions starting with the least restrictive;
⦁ It should have regard to the HCPC’s over-arching objective of protecting the public, maintaining public confidence in the profession and upholding proper professional standards;
⦁ The Panel should impose the minimum sanction necessary to meet the regulator’s overarching objective, bearing in mind that the purpose of sanction is not to punish; Sir Anthony Clarke MR in Meadow v General Medical Council [2007] 1 QB 462
⦁ The Panel should ensure that any sanction is proportionate, whilst bearing in mind that the interests of the profession take precedence: Bolton v Law Society (1994) 1 WLR 512;
⦁ The Panel should bear in mind that personal mitigation or remediation carries little weight at the sanction stage, given that the purpose of sanction is to protect the public and uphold the public interest; General Medical Council v Patel [2018] EWHC 171 (Admin);
⦁ In cases of dishonesty, there is generally considered to be a ‘scale of dishonesty’ and there is not an automatic presumption of strike-off: Lusinga v Nursing and Midwifery Council [2017] EWHC (Admin) 1458. However, in cases of serious dishonesty, it is likely to be an entirely appropriate sanction - R (Farah) v General Medical Council [2008] EWHC 731 (Admin)
86. The Panel began by considering, in line with the Policy, whether there are any mitigating factors. It concluded that there are not. Whilst the Panel had read the Registrant’s letter of apology, sent to the Panel on the morning of the final day of the hearing, it bore in mind that, as set out at paragraph 32 of the Policy, genuine remorse and apology is likely to be demonstrated before any hearing. Whilst the Registrant had made an admission and apologised in relation to Patient L, this was a fraction of the overall Allegation and the only patient in respect of whom a denial would have been untenable, given what was said in the text messages referred to above. This cast some doubt over the genuineness of that earlier apology.

87. The Panel considered that the following aggravating features were present:

⦁ The conduct involved a breach of trust as the Registrant was using prescription medication on clients for whom it had not been prescribed;
⦁ Repetition of the conduct over an extended period of time, and which was only brought to an end when questions were raised by the Pharmacy;
⦁ There had been a lack of genuine insight and remorse, with the apology for everything beyond Patient L only having been made after the Panel’s findings;
⦁ Lack of remediation. Whilst the Registrant had undertaken an ethics course, this had been very recent, and there had been nothing to demonstrate to the Panel any learning or reflection as a consequence;
⦁ The potential for harm to service users if prescriptions were forged or amended in the context of practice as an ODP was significant;
⦁ The Registrant had lied to the Panel in her evidence.

88. The Panel was aware that care needs to be taken before a rejected defence can be taken as an aggravating feature, as registered professionals have a right to defend themselves before their regulator. It considered that factors in set out in the judgment of Lord Hoffman in the case of Mirsa v General Medical Council, as referred to in the case of Sawati. It considered that it could fairly count the Registrant’s failure to tell the truth at the hearing as an aggravating feature because she faced three allegations of intrinsically dishonest conduct, and not only had she denied these in all but one patient’s case, but had sought to persuade the Panel that the responsibility lay with her prescriber colleague, who had no knowledge of the fraud.

89. Given the aggravating features this was a case of dishonesty at the most serious end of the spectrum. Prescribed medicinal products had been misused, and the Registrant, through her business, had personally benefitted from her fraudulent actions (by obtaining additional medication to provide extra treatments, in addition to treating people who had not been seen by a prescriber).

90. Against this backdrop, the Panel went on to consider the available sanctions in ascending order.

91. Mediation, taking no action, or issuing a caution were wholly insufficient given the serious nature of the dishonesty. The Panel had identified clear risks to the public, given the Registrant’s lack of genuine insight and hence risk of repetition. Further, the extremely serious nature of the dishonesty, and its inevitable impact on public confidence in the profession, meant that the public interest would not be met by any of these sanctions.

92. The Panel next considered a Conditions of Practice Order. It noted from the Policy that such orders are less likely to be appropriate in cases involving dishonesty, because this goes to a registrant’s attitude and underlying values. The deception inherent in dishonesty makes it extremely difficult to both formulate workable conditions, and have confidence that conditions will be complied with. Further, the other circumstances in which the Policy advises that Conditions of Practice may be appropriate, are not applicable in this case. They include the Registrant having insight, the failure being capable of remediation (which the Panel had, at impairment, found was highly unlikely), and that the Panel is confident that conditions would be complied with. Given the Registrant’s stated wish to no longer practise as an ODP, combined with the fact that the Panel could not formulate workable conditions to manage the risks posed by the Registrant’s dishonesty, it concluded that Conditions of Practice would be insufficient to protect the public. Further, the public interest would not be met by imposition of Conditions of Practice, given the extremely serious nature of the underlying dishonesty.

93. The Panel next considered a Suspension Order. It noted that such an order will generally be appropriate where, among other things, a registrant has insight, the conduct is unlikely to be repeated, and there is evidence to suggest that the registrant is likely to be able to resolve or remedy their failings. The Panel had not found any of these factors to be the case. In addition, it was of the view that a Suspension Order was not proportionate to the public interest, as it would give the message to the public and the profession that such serious dishonesty was compatible with continued registration.

94. The Panel therefore determined that a Striking-off Order was the only order that would protect the public and uphold the public interest. It noted that in accordance with the Policy, strike-off is a proportionate sanction for persistent and deliberate dishonesty. It bore in mind the judgment in R (Farah) v General Medical Council, which was an appeal by a doctor who had been erased after he had stolen and forged prescriptions to obtain drugs for his own use. The judge said:
“… given the nature of the appellant’s dishonesty and given the panel’s finding that there had been a persistent lack of insight into that dishonesty, whatever the mitigating factors were, the inevitable consequence was that erasure from the Register was an entirely proportionate response”.

95. The Panel concluded that a Striking-off Order was the only sanction which would protect the public, as there was a likelihood of repetition of the misconduct, the risks of which, due to the serious and deceptive nature of the conduct, could not be managed in any other way. Further, this was the only order which would effectively maintain standards and uphold public confidence in both the profession and the regulator, given that anything lesser would indicate that such conduct may be tolerated. Dishonesty of the nature described in this decision is, in the Panel’s view, fundamentally incompatible with continued registration. The Public would not be able to trust the ODP profession, which may lead them to taking risks with their own health, if practitioners who were known to have forged prescriptions in the circumstances of this case, were allowed to remain on the register.

ORDER: That the Registrar is directed to strike the name of Ms Dawn Earp from the Register on the date this order comes into effect.

Interim Order
Application

96. In light of its findings, the Panel next considered an application by Mr Molloy for an Interim Suspension Order to cover the appeal period before the final order becomes effective.

97. Mr Molloy submitted that an Interim Suspension Order should be made to cover the 28-day appeal period, and if an appeal is made, the time taken for that to be heard, in light of the Panel’s finding that a Strike-off Order is necessary. He asked for an Interim Suspension Order for 18 months to cover the time taken to deal with any appeal.

98. Ms Shah on behalf of the Registrant made no objection to an Interim Suspension Order.

99. The Legal Assessor advised the Panel that it could make an interim order if doing so was necessary for protection of the public, otherwise in the public interest or in the interests of the Registrant. The Panel should bear in mind its previous findings and also consider the appropriate form and duration of any interim order.

Decision

100. The Panel considered whether to impose an interim order. It was mindful of its earlier findings and that the Registrant is not fit to practise, and that her conduct was of such gravity that in order to both protect the public and uphold the public interest, she should not remain on the Register. The Panel decided that it would be incompatible with those findings if there was no interim order in place.

101. Accordingly, the Panel concluded that an Interim Suspension Order is necessary for the protection of the public and is otherwise in the public interest. An Interim Conditions of Practice Order would not be appropriate for the same reasons that a substantive order of this nature has not been made. The Panel made the interim order for 18 months, to allow for any appeal to be dealt with. When the appeal period expires, this interim order will come to an end unless an appeal has been filed with the High Court. If there is no appeal, the final order shall take effect when the appeal period expires.

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 Mrs Dawn Earp