Warren Brown

Preliminary Matters

Service

1. The Panel was satisfied that all relevant steps in relation to service of Notice of this review hearing was carried out in accordance with The Health and Care Professions Council (HCPC) (Conduct and Competence) (Procedure) Rules 2003 (the Rules).

Proceeding partly in private

2. Ms Khorassani, on behalf of the HCPC made an application for any matters of a personal or health nature to be discussed in private session relating to Mr Brown. Ms Shah on behalf of Mr Brown supported the application for the hearing to be held partly in private. The Panel accepted the advice of the Legal Assessor and considered the relevant HCPTS Practice Note on “Conducting Hearings in Private”.

3. The Panel was aware that as a starting point, all hearings should be held in public. Where there are overriding considerations, only then should that public interest in hearings held in open session be overridden. The HCPC (Conduct and Competence) (Procedure) Rules 2003 (the Rules) provide the Panel with a discretion to consider such issues of a personal or health nature in private. The right to respect for private life is protected in Human Rights legislation.

4. The Panel gave this matter consideration and agreed to the application to hear any part of the hearing in private where it related to matters of a personal or health nature in private.

Background

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

6. At the beginning of March 2020, Nuffield Health put on hold offering of Injection Therapy. The Registrant was informed. This decision was unrelated to the developing Covid-19 pandemic and was rather the consequence of a risk management assessment occasioned by the appointment of a new Chief Pharmacist who was to review policies and procedures around drug management.

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

8. In late September 2020, Nuffield Health received an email from a customer of the Registrant requesting a refund for an appointment they were unable to attend. The email suggested that the customer understood that the treatment was to be carried out and paid for under the governance of Nuffield Health in spite of the pause on offering services that were being reviewed by the Chief Pharmacist. An investigation was begun by Nuffield Health into the Registrant’s activities following the pausing of the injection service and since he was put on furlough.

9. The investigation that followed gave rise to allegations that were the subject of the substantive hearing as detailed above and are self-explanatory.

10. The Registrant did not disclose to the HCPC that he had been suspended by Nuffield Health on 8 October 2020. Accordingly, he had acted dishonestly in relation to Particulars 3, 6(ii) and 8.

Papers available

11. The Panel was provided with 2 bundles of papers today consisting of

• a review bundle of 54 pages and

• a remediation bundle on behalf of the Registrant consisting of 57 pages.

12. The Registrant gave evidence on his own behalf.

The HCPC

13. Ms Khorassani, on behalf of the HCPC, invited the Panel to extend the current suspension order for a further period of 12 months on its expiry.

14. Ms Khorassani said that the Registrant had not engaged with the HCPC during the current period of suspension until relatively recently. She said that the remediation bundle had only recently been passed to the HCPC and this suggested efforts at remediation which were

• close in time to this review and

• developed over an insufficiently brief period of time

to represent full remediation of the serious attitudinal issues identified by the substantive hearing panel and to demonstrate embedded remediation. Accordingly, a further period of suspension would afford the Registrant an appropriate opportunity to engage meaningfully and constructively with the serious issues raised in the substantive panel’s findings including dishonesty.

15. Ms Khorassani submitted that the Registrant had a persuasive evidential burden to satisfy the Panel that he had fully remediated his past failings and was unlikely to repeat them or other failings in future. She reminded the Panel that the purpose of this review was to secure

• public safety which included the safety of patients and professional colleagues,

• act to maintain and support the confidence of the public in the profession of Physiotherapy and

• to declare and uphold standards.

The Registrant had imperilled patient safety and seriously undermined public trust and confidence by his dishonest actions. He had permitted patients and service users that services were being provided not by an autonomous sole practitioner but by an employee of a substantial and reputable private health provider. Further, he had acted to mislead an employer in providing

• an occupational ergonomic assessment to it in support of special equipment and conditions to
• support work-from-home

on behalf of a friend that it had been provided by a reputable and substantial organisation. Instead, he had completed the report personally and when confronted about it in the Nuffield investigation, had falsely asserted not to have completed such a report for anyone.

16. Ms Khorassani submitted that the remediation evidenced by the Registrant was inadequate to meet the requirements of establishing that he had fully and completely remediated his past misconduct. Accordingly, the Registrant remained impaired as at today. She reminded the Panel that the test of current impairment included, in the public component, the test formulated in CHRE v NMC and Paula Grant [2011] EWHC 927 (Admin), beginning at paragraph 76, that the Registrant had

• acted to put service users at unacceptable risk of harm,

• brought the profession into disrepute,

• breached a fundamental tenet of the profession and

• had acted dishonestly.

On behalf of the Registrant

17. Ms Shah, on behalf of the Registrant submitted that the Panel ought to find that the Registrant was no longer impaired as at today. Accordingly, no sanction was appropriate or appropriate following the expiry of the current order. Alternatively if the Registrant was found still to be impaired, the appropriate and proportionate sanction was one of

• a caution for a period to be decided by the Panel or

• perhaps a conditions of Practice Order.

18. Ms Shah reminded the Panel that the substantive hearing panel had heard from the Registrant in mitigation following the findings made in relation to the facts in dispute (the Registrant had also made significant admissions) and impairment (which had been admitted by the Registrant).

19. Ms Shah pointed out that the substantive hearing panel had made important and highly material findings that the Registrant had already at that time largely demonstrated close-to-complete insight.

20. Ms Shah relied on the print of the substantive panel’s decision at paragraphs 62 and 66 and in relation to sanction at paragraph 84 as follows:

Paragraph 62
The admissions made by the Registrant at the commencement of the case have already been recorded. The Registrant’s admission included an acceptance that he had breached furlough rules, breached Nuffield Health policies and misled service users. It follows from this that the Registrant had by that stage already achieved a significant degree of insight into his inappropriate behaviour. However, at the same time, there were factors that suggested that the Registrant had chosen to view matters from a perspective that suited how he would have liked matters to have been, rather than how they actually were. Two examples will suffice. One is his denial in both the Nuffield Health investigation and at this hearing that he had performed an ergonomic assessment ( articular 6(ii)). The other is his reliance on an obscure piece of advice tendered by the HCPC to employers rather than the crystal-clear requirements imposed on Registrants by the Standards of conduct, performance and ethics. The evidence given by the Registrant at the present stage of the hearing that he could now understand that his attitude in the Nuffield Health investigation was obstructive demonstrates that the Registrant is still working towards full insight into his actions.

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

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

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

21. Ms Shah took the Panel to passages of the 7-page remediation statement included in the bundle which the Registrant had been asked to enlarge on in his evidence. She disagreed with Ms Khorassani that the recent date of the bundle had any significance. In reality, she said, the depth of specific insight, remorse and grasp of the public and private component issues explored by the Registrant was self-evidently done over a much more extended period of time. Ms Shah said that the Registrant had begun to deepen his insight almost immediately after the substantive hearing and had methodically and purposefully continued this throughout the period of his suspension.

22. Ms Shah invited the Panel to have close regard to certain important elements of the Registrant’s evidence.

23. [REDACTED] He had come to realise that his driving sense of professional ambition and his own financial self-interest had allowed him to set aside the standards imposed on him for reasons of public protection. He keenly felt the disgrace of being the cause of this and the tarnished reputation of a profession that he regarded as his ‘…dream’.

24. The Registrant had addressed the risks of being de-skilled by engaging in local voluntary work, befriending and supporting vulnerable elderly service users in a charitable organisation.

25. The Registrant had completed all of his CPD requirements and had obtained certification of competence in relevant areas of practice including phlebotomy. The Registrant used these skills acting as an agency Health Care Assistant which he dis alongside his voluntary work.

26. The Registrant had explained in depth and with precision what the adverse impacts were of him professionally but more importantly for colleagues and for the reputation of the profession. He had expressed clear and genuine sorrow that he was the cause of this. He had now dedicated himself to restoring his place in a profession that he loved.

27. Ms Shah said that the Registrant’s departures from the high standing in which he was personally and professionally been held in a career spanning more than 20 years was associated with the restrictions imposed nationally in Covid 19 Lockdown conditions. He had completely grasped the gravity of his misconducted and had shown full remorse, insight and commitment to there being no repetition of any falling short in any circumstances.

28. Ms Shah submitted that the public would not have any concerns were the Registrant to be restored to practice without restriction in all of these circumstances. The public, and in particular service users, were no longer at risk from the Registrant’s unrestricted practice.

29. The substantive hearing panel had made clear that there had already been such a significant degree of insight shown that it would not guide the Registrant in regard to what material he should provide this Panel with, as set out in paragraph 84 of its decision. The Registrant had not adopted a minimalist posture in response to this invitation by the substantive panel. He had embarked on a thorough journey of complete and fully evidenced remediation. There was, accordingly, every reason to regard his as no longer impaired on other the personal or the public component.

Decision

30. The Panel accepted the Legal Assessor’s advice and reminded itself that its purpose today is to conduct a comprehensive review to determine if the Registrant is fit to return to unrestricted practice. The Panel’s role is not to conduct a rehearing of the Allegation, nor is it to go behind the previous findings.

31. The Panel first began by considering whether it was satisfied that the Registrant was or was not impaired today. In carrying out this assessment, the Panel must exercise its own independent judgement. If the evidence before the Panel is sufficient to show that there has been full remediation and full insight gained, such that there is little or no likelihood of a repetition of the misconduct, the Panel may come to the conclusion that there is no continuing impairment and, in such a situation, the Panel may allow the current order to lapse on 27 October 2024.

32. If, however, the Panel determines that the Registrant’s fitness to practise remains impaired, then the Panel must go on to consider what restriction, if any, should be imposed. In that circumstance, the Panel should bear in mind the principles of fairness and proportionality and have regard to the Sanctions Policy document issued by the HCPC. Any order made under Article 30 of the 2001 Order should not be punitive in purpose and should be the least restrictive order that would suffice to protect the public and would otherwise be in the public interest.

33. The Panel carefully considered the documentation before it and the submissions made on behalf of the HCPC by Ms Khorassani and on behalf of the Registrant by Ms Shah. The Panel acknowledged that the Registrant carries the persuasive burden of satisfying the committee that his fitness to practise is no longer impaired. In Abrahaem v General Medical Council [2008] EWHC 183 (Admin) at Paragraph 23 the court said that a review has to consider whether all of the … concerns raised in the original finding of impairment through misconduct have been sufficiently addressed to the Panel's satisfaction. In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision, or other achievement sufficiently addressed the past impairments.’

34. The Supreme Court, said in Khan v GPhC [2017] 1 WLR 169 SC (Sc) said that the Panel …’will also need to satisfy itself that the Registrant has fully appreciated the seriousness of the relevant breach(es), has not committed any further breaches of the Council’s standards of conduct, ethics and performance, and has maintained their skills and knowledge to date, and that the public will not be placed at risk by resumption of practice or by the imposition of conditional registration.’

35. Lord Wilson said:
The focus of a review is upon the current fitness of the Registrant to resume practice, judged in the light of what he has, or has not, achieved since the date of the suspension. The review committee will note the particular concerns articulated by the original committee and seek to discern what steps, if any, the Registrant has taken to allay them during the period of his suspension. The original committee will have found that his fitness to practise was impaired. The review committee asks: “Does his fitness to practise remain impaired?’

36. In the fifth report of the Shipman Inquiry, 9 December 2004 (Cm 6394), Dame Janet Smith, Chairman, stated at paragraph 27.267: “Review hearings are extremely important. They are the “teeth” behind the sanctions other than erasure and should focus the doctor’s mind on the need to undertake any necessary remediation.”

37. The Panel understood therefore that it must be alive to any material change in position since the substantive hearing.

38. The Panel considered carefully the Registrant’s own evidence and the support for his continued remediation found in the extensive testimonial provide on his behalf. Further, there was evidence of targeted and relevant training and education extending to over 77 hours of study and development carried out alongside voluntary and paid employment.

39. The Panel accepted that any finding of discreditable misconduct especially when associated with multiple findings of dishonesty must be highly destructive of trust in the Physiotherapist personally and in the necessary public trust and confidence in the profession. The public would be concerned if a review were to accept at face value what was advanced on behalf of any such Registrant in circumstances where it was submitted that insight was now complete and the Physiotherapist could be regarded as capable of being restored to practice without any restriction.

40. Accordingly, the Panel looked with great care at the evidence and all of the supporting material. The Panel was assisted not only by Ms Shah’s submissions but also the careful and searching cross-examination of the Registrant conducted with skill and attention to detail by Ms Khorassani on behalf of the HCPC.

41. The Panel observed that at several points in his evidence, the Registrant had demonstrated clearly the importance of absolute probity in his professional practice, placing his own needs and ambitions second to the need to provide safe and effective treatment that will promote patient and service user safety as his first and most prominent concern.

42. The Registrant had explored the corrosive impact that his actions and his dishonesty had on the trust and confidence which the public placed in the profession of Physiotherapy. He had repeated his remorse for his actions, his acceptance of his culpability and also his determination to restore both his own reputation and to safeguard and uphold public trust and confidence.

43. The Registrant had said in evidence that in relation to Particular 3,

‘I put the patients at risk by performing these injections. There was risk of side effects such as bleeding/bruising, swelling, increased pain, infection, tendon rupture, raised blood sugars and possible systemic effects. I misled them and used their personal information without fully informed consent which could have caused personal loss, exposure to unwanted marketing, phishing and online security risks.’

44. In relation to Particular 4, he said

‘I knew the injection therapy service was not running, and it was nothing to do with covid restrictions, yet I used that as an excuse to justify my actions and to hide the fact that I was doing it for financial gain. I have not displayed this type of behaviour since and will not again. It was selfish and unprofessional of me to do so. I put the patient at risk of not only physical harm but possible personal loss of private data and information and could have permanently damaged their faith and respect in the profession. Nuffield Health could have suffered great financial losses here and their public reputation could have been badly damaged.’

45. In relation to Particular 8 he said:

‘I avoided following the correct process for reporting to the HCPC. I found an obscure piece of evidence on the HCPC website that I felt would protect me and put me in a better light as a way of self-preservation. I am not confused about the regulations and standards of practice. I did not want to face the truth that I had acted dishonestly and undermined my regulator. I know I must tell my regulatory body if anything happens immediately. I have not performed my obligations to my regulator, this is a public protection matter and is of the highest importance.’

46. In relation to Particular 9 he said:

‘My actions in this case were misleading, dishonest and for my own financial gain. Dishonesty to the regulatory body is not acceptable. I did not want to admit this at the time to avoid regulatory scrutiny and to also avoid facing the imminent sanctions I know I would have to face. I would therefore have to take full responsibility for single handedly ruining my career and I could not face that, so I moulded the situation to suit me. I have deprived the regulator from doing its job and by doing that have not allowed them to fulfil their goal of maintaining public protection. If the regulator is not informed, they cannot assess the severity of the potential risk we as physio’s pose and they cannot conduct a detailed risk assessment in order to keep the public safe. This would leave patients in a vulnerable position. Patients put their life in our hands and that’s because we are to be trusted, I have lost that trust. The public may think “if one physio can do it, maybe they all can”. If the public were to lose trust in the profession no one would come to us for help or disclose anything, it would create a lack of trust in the system.

Patients would not want to listen to or follow advice/treatment and this would undermine the entire profession, and this would damage what value we give to society. Physiotherapists cannot work without integrity and honesty as no one would believe them.
Being a physiotherapy is an honour and a privilege. It is a regulated profession and has an amazing reputation. The public see us as honest professionals with integrity.

47. The Panel noted that each Particular had been addressed in full and to the same effect.

48. The Panel considered that this case was one where, in distinction to many other cases, the Registrant has been able to demonstrate such full and complete insight that the Panel is satisfied he is no longer a risk to the public. Further, the public would have no concern were the Registrant to be restored to unrestricted practice. In the Panel’s view, the Registrant has demonstrated his obligations to recognise service user safety and the interests of service users as his first priority far above his own. He has shown that he understands and is committed to restoring public trust and confidence in the profession of Physiotherapist. The approach set out by the High Court and the Supreme Court in regard to remediation has been followed by the Registrant wholeheartedly and with intelligence.

49. In all of these circumstances, the Panel is fully satisfied that the Registrant is not impaired today on either the personal or the public components. The Panel decided that at the conclusion of the current period of suspension, the Order should be permitted to lapse with no further restriction being put in place.

ORDER: The Registrar is directed to allow the current Suspension Order against the registration of Mr Warren Brown to lapse upon its expiry, namely 27 October 2024.

Right of Appeal
An appeal may be made to the High Court in England and Wales against the Panel’s decision and the order it has made.

History of Hearings for Warren Brown