Dawn E Hicklin

Decision on Facts

50. In considering this case the Panel has borne in mind that the burden of proving the facts rests upon the HCPC and that the standard of proof is the civil standard of the balance of probabilities. It has taken account of all the evidence presented to it, namely the written and oral evidence of the witnesses detailed below, together with the documentary evidence provided by the HCPC which included responses by the Registrants. It has also considered the submissions of Mr Corrie on behalf of the HCPC, and has accepted the advice of the Legal Assessor. In particular, it has taken account of the various audits prepared by the witnesses together with the Schedule of Evidence prepare by Mr Corrie, which is attached to this decision and hereinafter referred to as Appendix A.

51. The Panel heard evidence from the following witnesses on behalf of the HCPC:

EL, Physiotherapist and the Senior Commissioning Manager at Sandwell and West Birmingham Hospitals NHS Trust (“the Trust”);
LK, at the time of the investigation, Employment Relations Advisor and Casework Manager based within the Casework Investigation Unit (“CIU”) of the Trust, but now People Partner for Restorative People Management at the same Trust;
LJ, Physiotherapist and Director of Therapies at the Trust at the time of the investigation into Ms Hicklin;
AC, Director of [the employer]; and
AS, Consultant Paediatric Physiotherapist and Director of the Paediatric franchise of [the employer].

Witness assessment

52. The Panel made the following assessments of the witnesses: notwithstanding that they were not cross examined by the Registrants, the Panel found all the HCPC witnesses to be very credible; impartial and balanced; and consistent and clear in their recollections.

53. Specifically, with regard to EL, the Panel noted that she gave evidence about witnessing the incident on 4 January 2019 when she observed Ms Hicklin handing to Mr Harding allegedly empty boxes of Dysport (Botulinum toxin) which, after reflection, she reported to LJ. The Panel noted that she had been consistent in her accounts and noted that Ms Hicklin had admitted Particular 5, thereby not disputing EL’s evidence. Accordingly, the Panel had no reason to doubt EL’s evidence.

54. With regard to LK and LJ, the Panel noted that they each gave evidence about their working together investigating Ms Hicklin, with LK assembling the documentation that was available and then LJ and EK considering the same (with LJ providing clinical input). Thereafter they jointly prepared the audit report in relation to Ms Hicklin. The Panel noted that they gave their evidence in their capacity as professionals, (in particular noting that LJ was registered with the HCPC). Furthermore, their written and oral evidence was consistent with one another and with their findings in their audit. The Panel found them to be compelling witnesses.

55. With regard to AC and AS, the Panel noted that they each gave evidence about their working together investigating Mr Harding, AS having initiated the process after being advised by Patient A that Mr Harding had apparently administered Botulinum Toxin to them without a prescription. The witnesses then worked together with AC assembling the documentation that was available and then AC and AS considering the same (with AS providing clinical input). Thereafter, they jointly prepared the audit reports in relation to Mr Harding. The Panel noted Mr Corrie's written submissions regarding their credibility as follows:

“51. The Committee is invited to find that both AC and AS were witnesses who can be relied upon in that it is submitted that:

i. They gave evidence in their professional capacity;
ii. There was nothing to gain from the evidence they gave;
iii. Both witnesses were concerned by what had happened and upon having become aware of the potential issues acted entirely properly in that there was a thorough audit and a prompt referral to the HCPC. This should be considered in the context that the matters that were being reported had the potential to cause professional embarrassment and reputational harm to [the employer]. The Committee will recall AC’s evidence as to the fallout and financial impact of what was discovered but that he said it was important;
iv. Both are registered professionals (AC is a physiotherapy assistant registered with the CSP and AS a physiotherapist registered with the HCPC);
v. Both were clearly very familiar with the processes and protocols in place at [the employer];
vi. AS is experienced in the use of Botulinum Toxin A to treat spasticity and so is well placed to comment on what was required in terms of what was required and in regard to record keeping;
vii. Both gave evidence in an open way which was consistent with their written statements and the results of the audit.”

56. The Panel agreed with and accepted these submissions as they were commensurate with its own impressions of AC and AS and therefore found them also to be compelling witnesses.

Decisions on the Individual Particulars

Hicklin

57. The Panel reminded itself that, in relation to Ms Hicklin, it had already found proved by way of admission Particulars 1, 2, 5, 6, 7, and 8. The remaining matters were the amended Particulars 3 and 4.

“3. You did not follow the hospital trust’s procedures for the matters set out in allegations 1 and 2 above”.

Found Proved

58. The Panel reminded itself that Particulars 1 and 2 stated:

“1. Between 17 May 2018 and 04 January 2019, you gave the prescribed drug Botulinum Toxin to colleague 2 [Mr Harding].

2. Between 17 May 2018 and 04 January 2019, you knowingly allowed the administration of drugs prescribed by the trust for SWBH Service Users by colleague 2 to the Service Users set out in Schedule A.”

59. The Panel took into account the written submissions of Mr Corrie on this matter. He stated:

“11. It is submitted that the evidence is such that this allegation should be found proven for a number of reasons.

12. Ms Hicklin has not admitted the allegation as it is currently pleaded within the representations made to the Investigating Committee dated 12 October 2020 she indicated that she accepted all the factual allegations [C/1472]. By email dated 9 October 2024 she admitted all allegations [C/23]. Whilst allegation 4 was pleaded incorrectly to refer to controlled drugs procedures it is submitted that Ms Hicklin, experienced as she was in the prescribing and administration of Botulinum Toxin Type A, is likely to have been aware [it] was not a controlled drug and that the spirit of the admissions made were that she accepted she had not followed the relevant procedures. It is, therefore, submitted that this admission should carry weight.

13. Further, the HCPC rely upon the, albeit hearsay evidence, of Ms Horwill [C204] in which she states that:

i) “for this hospital, the only people that could administer that drug would be the consultant or non-medical prescriber, or practitioners named on a PGD as having received appropriate trust training. All need to be trust employees or on a contract with the trust.

ii) No, you can't give the medication to [a] third party to administer on site. The PGD depicts this.

iii) Q: can staff working for another trust administer medication on this trust premises?

A: No.

iv) Q: Can someone that is a clinician by background be given the medication to administer away from trust premises?

A: No, in this this has been agreed at group level and the appropriate SOPs, risk assessments and PGD's are in place. It should not be taken away to administer.”

14. Whilst it is accepted that this evidence is hearsay evidence, it is supported by what is set out in the Medicines Optimisation Policy 2017 [C/488-545] which was that in force at the time and sets out clearly that only those authorised to do so can administer the medication (Key Points [C/488] and 10.1 [C/517])

15. It is further supported by LJ’s written evidence in that she explained that she was aware the governance related to the injections of Botulinum Toxin Type A (witness statement paragraph [SB/117]. In her oral evidence she stated that she was qualified to act as clinical advisor to the investigation because the investigation related to governance issues and not clinical competence. LJ was taken to the Medicines Optimisation Policy in evidence and confirmed it was in force and applied. Moreover, she stated in evidence that she agreed with Ms Horwill’s opinion as to the policy.

16. The Committee is, therefore, invited to accept the evidence in respect of the Trusts’ procedures.

17. The issue then becomes whether by her actions in relation to allegations 1 and 2 was Ms Hicklin in breach of the Trusts’ procedures. It is submitted that they were:

i. Mr Harding was not employed by the Trust;

ii. LK gave evidence in relation to whether or not Mr Harding or [the employer] had any contract with the Trust and said that there was not. In support of this she explained that she had made the enquiry of a colleague, Tim Reardon who confirmed that there was no record of any payments between the Trust and [the employer] and so there was no existing contract [paragraph 24 C/52];

iii. Although LK referred to an email dated 20 February 2019 in support of this, it was apparent in oral evidence that the email at Exhibit 30 [C/227] was not the correct email. Nevertheless, this conversation and the outcome of the enquiry with Mr Reardon is documented within the investigation report at paragraphs 4.3.2.1 [C/80] and 4.4.1.1 [C/84]. This is a contemporaneous document setting out the steps of investigation. LK stated in her oral evidence that she would not have included this information in her report if it was not correct;

iv. Mr Harding was not an employee of the Trust, he was not a contractor with the Trust and was not entitled to be provided with Botulinum Toxin from the Trust to use elsewhere or on Trust premises;

v. By being party to this Ms Hicklin was acting in flagrant breach of Trust procedure.”

60. The Panel noted that the Medicines Optimisation Policy at Key Point 8 states:

“Medicines may only be administered by those authorised to do so, against a written prescription, Patient Group Direction, Patient Specific Direction or in an emergency in circumstances specified in section 6.7 and 6.8 of this policy.”

61. The Panel saw no reason not to accept the hearsay evidence of Ms Horwill particularly as it was consistent with Key Point 8 and commensurate with her post as the Deputy Chief Pharmacist of the Trust. Further, the Panel considered that Ms Hicklin, who was a Band 8b Therapy Lead and a Qualified Prescriber, would have known about this policy as it was particularly relevant to her role as a Qualified Prescriber.

62. Accordingly, the Panel was satisfied and concluded that it is reasonably likely that Ms Hicklin was fully aware of the Trust’s procedures in the administration of medicines. As she has already admitted delegating the administration of Botulinum Toxin to Mr Harding (who was not employed by, or had any contractual relationship with, the Trust) it follows that she did not follow the hospital Trust’s procedures. The Panel therefore finds this particular proved.

Particular 4

“4. Between 29 August 2017 and 14 December 2018 you did not maintain adequate Service User records in that:

a. You did not complete consent forms for the Service Users, adequately or at all, set out in schedule B,
b. You did not complete WHO checklists for the Service Users set out in schedule C,
c. You did not complete records for appointments attended by the Service Users set out in schedule D,
d. You did not upload clinical letters onto CDA in a timely manner for the Service Users set out in schedule E,
e. You allowed colleague 2 who has no direct SWBH clinical relationship to write clinical notes on your behalf and utilised these as the clinical documentation for Service Users,
f. Did not record the use of Botulinum Toxin on service users.”

Found Proved

63. Once again, the Panel took account of the written submissions of Mr Corrie, who stated:

“18. In respect of this allegation it is submitted that the Committee can approach it in the following way:
i. Determine whether the sub-particulars a – f are proved;
ii. If any of the sub-particulars are found proved to determine whether the record keeping was adequate.

19. One of the preliminary issues considered at the commencement of this hearing was the approach to admissions. It was noted that Ms Hicklin had made admissions to the allegations as pleaded prior to the amendments both within her representations to the IC and the aforementioned email dated 9 October 2024.

20. Ms Hicklin’s admissions were to the effect that her records had not been accurate and that she had not completed consent forms at all. The HCPC relies upon the results of the audit to support is case in regard to Ms Hicklin’s records. The auditor makes no criticism as to the accuracy of the records but to the effect that there were items missing or inadequately completed. Further, although there are some instances in which there is no consent form, often the criticism related to the adequacy of the consent form.

21. Thus, as this Committee is aware an application was made at the outset of the hearing to amend this allegation to insert the word adequate.

22. In these circumstances, it is submitted that whilst the admissions cannot be accepted, there is no obvious challenge and the Committee can take into account the spirit of the admissions in that Ms Hicklin clearly accepts some criticism of her record keeping.

23. Further, Ms Hicklin has admitted the sub particulars and the Committee is entitled to accept said admissions. However, for the reasons set out below and within Schedules appended to the Case Summary, regardless of the admissions, it is submitted that the evidence of the audit and the records supports the allegations.

24. The HCPC respectfully refers the Committee to the: i The HCPC Standards of Proficiency – Standard 10.1; ii The HCPC Standards of Conduct Performance and Ethics – Standard 10.1

25. In seeking to establish that the records were inadequate the HCPC relies upon the outcome of the audit which identified variously that there were either inadequate or missing consent forms, uncompleted WHO Checklists, records not completed at all and not uploading letters in a timely manner and not completing records for some appointments.

26. It is submitted that the outcome of the audit can be relied upon in that it was carried out with access to all records available (as per the evidence of LK and LJ), it was carried out by two employees of the Trust in the course of their professional roles and in respect of the clinical judgments exercised as to the adequacy of the records and what ought to have been present, LJ was a senior physiotherapist with the relevant expertise to assess whether the records were acceptable. (Audit matrix C/87-93]

27. Moreover, it is submitted that both LK and LJ gave evidence in a clear and open manner and gave evidence consistent with their written evidence.

28. The findings of the audit are supported within the records exhibited as set out in Schedules A, B, C, D. and E and the Committee is respectfully referred to these…”

64. The Panel accepted Mr Corrie’s suggestion (which was endorsed by the Legal Assessor) that it consider each of the sub-particulars in turn (acknowledging that most had been admitted) and then consider whether the stem of Particular 4 had been proved.

65. However, as a preliminary matter, again as suggested by Mr Corrie, the Panel considered whether it was appropriate to rely upon the audit prepared by LK and LJ. The Panel reminded itself that it has already found that both witnesses gave compelling and credible evidence, consistent with each other and with their written evidence.

66. The Panel noted that the audit was carried out, with access to all the records available, by two employees of the Trust, LK and LJ, in the course of their professional roles. Further, in respect of the clinical judgments exercised as to the adequacy of the records and what ought to have been present, the Panel took into account that LJ was a senior physiotherapist with the relevant expertise to assess whether the records were acceptable. Moreover, by way of example, the Panel noted that Ms Hicklin admitted Particular 2, which referred to Schedule A, and therefore it follows that she must have accepted the accuracy of the audit, certainly as it pertained to Schedule A and its contents. The Panel therefore saw no reason not to bear this in mind when considering the remaining schedules (A to E).

67. Finally, the Panel confirms that its individual members, independently from each other, went through Appendix A (which had been prepared by Mr Corrie) in detail and cross referenced the same with the audit and with the relevant documentation in the Evidence Bundle, and satisfied themselves regarding the accuracy, not only of Appendix A but also of the audit. Having completed this exercise, the Panel therefore considered that it was able to rely in full upon Appendix A (together with the attached Schedules A, B, C, D and E) and upon the audit.

68. The Panel went on to first consider the individual sub-paragraphs of Particular 4.

Sub-particular 4a

“4a You did not complete consent forms for the Service Users, adequately or at all, set out in schedule B”,

Found Proved

69. The Panel noted the submissions of Mr Corrie as follows:

“Allegation 4a

29. In respect of allegation 4 a, which goes to the adequacy of the consent forms. In some instances there was no form whatsoever. LJ gave evidence that a written consent form was required. It is submitted that it follows, therefore, that if there was no consent form it was not completed adequately.

30. Further, in regard to many of the forms, the criticism is that the consent form referred to only limited risks. LJ was asked about what should be recorded here in her evidence in chief and gave evidence to the effect that it should include intended benefits and a full list of risks including bruising, swelling, difficulty swallowing, anaphylaxis, contraindications, other complications.

31. It is submitted that if the consent forms are reviewed (please see Schedule B) none of these sets out the risks and benefits which LJ has stated are required.

32. The Committee is invited to find that the consent forms were not completed adequately in respect of each patient within the Schedule.”

70. As indicated above, the Panel, through its own individual and collective consideration of Appendix A and the audit, had satisfied itself regarding the accuracy of both those documents. For instance, to take a random example, the Panel noted, regarding Patient H, that the audit (at C/89), confirmed that, although Dysport was administered on 15 May and 18 September 2018, there were no consent forms on the records reviewed (as collated at C/762).

71. Consequently, as the Panel was satisfied that there were no consent forms regarding the administration of these two injections of Botulinum Toxin, it followed that the allegation regarding Patient H was proved on the basis that Ms Hicklin did not complete a consent form “at all”.

72. To take another random example, the Panel noted, regarding Patient G, that the audit (at C/88), confirmed that, although a consent form was completed on 17 August 2017, it was not completed to the required governance standards. The risks recorded were “bruising, pain at time of injection”. Moreover, the audit indicates that Ms Hicklin had responded to the audit and, in relation to Patient G, she had stated that “the consent form should [the Panel’s emphasis] record bruising, focal bleeding, flu like symptoms, excessive weakness, swallowing problems”. Furthermore, in LJ’s oral evidence the Panel heard that ‘the statement of risk on the consent form should include all risks, that would also include allergic reactions and anaphylaxis.’

73. Accordingly, it was apparent that Ms Hicklin had accepted, even before the amendment that, as the form “should” record matters which had not been recorded, the consent form was, essentially, not completed “adequately”, which the Panel considered again demonstrated that Ms Hicklin had confirmed the accuracy of that audit. The Panel therefore found the allegation regarding Patient G proved.

74. Moreover, the Panel noted that, in relation to a number of other patients listed in Schedule B, Ms Hicklin had responded that “the documentation [for example, Patient C, where “bruising” had been listed as the sole risk factor] “was not robust enough and not to an expected standard required”. This again, in the Panel’s judgement, indicated that she had accepted that, in essence, her record keeping was not adequate.

75. Taking these two examples as representative of the accuracy of the audit and of Appendix A, and bearing in mind Ms Hicklin’s apparent acceptance of the accuracy of the audit, certainly in part, the Panel therefore considered that it was appropriate to extrapolate those findings across the remainder of the patients listed in Schedule B, and to find that, on balance, subparagraph 4a was proved in its entirety.

76. Notwithstanding that Ms Hicklin had admitted the remainder of the sub-paragraphs in Particular 4, the Panel nonetheless went on to note Mr Corrie’s individual submissions in relation to them, in preparation for considering whether the patient records were “adequate”, as pleaded in the stem of Particular 4.

Sub-particular 4b

“You did not complete WHO checklists for the Service Users set out in schedule C”

Already found Proved by way of admission

77. The Panel noted the submissions of Mr Corrie as follows:

“33. The Committee will recall the evidence provided by LJ as to what a WHO checklist is and its purpose. She said to the effect that:

i. Historically it was a surgical checklist put in place following surgical errors;
ii. The intention is to confirm consent and everyone involved in the process would confirm the correct procedure was being carried out;
iii. it should be used each and every time a muscle is injected against the risk of injecting the wrong limb or muscle;
iv. It reduces the risk of a never event.

34. Thus a WHO checklist was required for each and every injection of Botulinum Toxin. It is submitted that if one reviews the audit document and cross references with the records it is apparent that there were not WHO checklists within the records in relation to each occasions injections were administered.

35. The Committee is, therefore, invited to find this allegation proven.”

78. The Panel noted that Ms Hicklin had responded to a number of the allegations in the audit regarding patients who did not have WHO checklists, but nowhere did she dispute that WHO checklists were required.

Sub-particular 4c

“You did not complete records for appointments attended by the Service Users set out in schedule D”

Already found Proved by way of admission

79. The Panel noted the submissions of Mr Corrie as follows:

“36. There were three instances referred to in the audit and set out in Schedule D appended to the Case Summary.

37. It is submitted that, there obviously must be a duty to record patient attendances and that this was supported by LJ’s evidence.

38. The Committee is invited to accept this contention and find the allegation proved”.

80. The Panel noted that Ms Hicklin had responded to all the allegations in the audit regarding patients who did not have completed records for appointments, but nowhere did she suggest that clinical records of such appointments were not required.

Sub-particular 4d

“You did not upload clinical letters onto CDA in a timely manner for the Service Users set out in schedule E”

Already found Proved by way of admission

81. The Panel noted the submissions of Mr Corrie as follows:

39. “This relates solely to Patient A and the letter dated 26 March 2018 [C/615].

40. The letter has handwriting that it was scanned on 10 April 2018 and on the record keeping system, CDA, on 3 May 2018. The evidence from [LJ] has been to the effect that there was at the time a process in place whereby the records would be scanned onto the system by secretaries but that it is a clinician’s responsibility to ensure the records are uploaded. She stated that it is not unusual for referrals to take a few weeks to be uploaded but that it was good or even best practice for clinical notes to be uploaded in real time. LJ explained that if the patient were to have an adverse reaction and need to attend A & E that the records of the administration of Botulinum Toxin would be required.

41. She stated that it should have been on the system immediately or at least within 24 hours and suggested that the delay may be due to the secretarial team thinking it was a referral due to it being on [the employer] notepaper. Finally, when asked if this was a trivial matter given that it was only one patient, she stated that it feels trivial until someone has an adverse reaction and she considered it to have been inadequate.

42. It may be that the Committee feels it cannot blame the Registrant for any delay at the behest of the secretarial team.

43. Nevertheless, the intervention took place on 18 March 2018, it does not appear to have been scanned on the system until over two weeks later and that, it is submitted, was the Registrant’s responsibility.

44. The Committee is invited to find that the letter was not uploaded in a timely manner and that this was inadequate in terms of record keeping.”

82. The Panel noted that Ms Hicklin had responded to this particular allegation in the audit but had not commented at all upon the issue of delay in uploading correspondence, or challenged such a requirement.

Sub-particulars 4e and f

“e. You allowed colleague 2 who has no direct SWBH clinical relationship to write clinical notes on your behalf and utilised these as the clinical documentation for Service Users,

f. Did not record the use of Botulinum Toxin on service users.”

Already found Proved by way of admission

83. The Panel noted the submissions of Mr Corrie as follows:

“45. It is noted that in the allegations neither of these allegations refer to any specific patients. Within the schedules appended to the Case Summary a table has been set out seeking to assist with how the case is put.

46. The Committee will recall the evidence of LJ in relation to record keeping in which she stated that it was not acceptable

47. Further, in relation to allegation 4 e, the Committee will note that a feature of the evidence in relation to the patients referred to in the schedule appended to the Case Summary is that there is no clinical record but for the letters written by Mr Harding. When asked whether it was acceptable to rely on Mr Harding’s letters as a clinical records LJ was clear that it was not and stated that ‘she would expect it to be written by the clinician and that it was a bit like asking her husband to write her records and that it did not meet governance standards”. She also said that there were at least 5 patients referred to an intervention on [the employer] headed paper and that this did not meet the Trust’s standards.

48. In respect of allegation 4 f, the Committee is reminded of the evidence of LJ as to the process of recording a clinical note in which she said it was done in real time and that [an] F4 clinic letter setting out that letter should include a full subjective, objective, a full assessment, either limb or lower limb and an analysis and treatment options. Upon review of the schedule for allegation 4 f in the light of this evidence, it is apparent that a number of these are letters written onto the Trust’s internal system and so no criticism is made. The schedule has been revised accordingly. It is submitted that the evidence supports that no record was made by Ms Hicklin of the use on Botulinum Toxin on service users.

49. LJ considered the records to be inadequate. The Committee is invited to accept this. It is submitted that the records as a whole were inadequate and the Committee is invited to find allegation 4 proved in its entirety.”

84. The Panel noted that Ms Hicklin had responded to this particular allegation in the audit but had not commented at all upon the issues of using letters written by Mr Harding as clinical notes or of not recording the use of Botulinum Toxin in the patients’ records, nor had she challenged such requirements.

85. The Panel took account of Mr Corrie’s amendments to Appendix A as they applied to sub-paragraph 4f and noted that, although no Schedule had been prepared in relation to that sub-paragraph, it no longer applied to Patients C, D, G, I, L, M, N and O.

86. The Panel finally went on to consider the stem of Particular 4, namely:

“Between 29 August 2017 and 14 December 2018 you did not maintain adequate Service User records in that”:

Found Proved

87. The Panel reminded itself that the sole issue it had to decide was whether the matters itemised in subparagraphs a to f demonstrated that Ms Hicklin had not maintained “adequate” patient records.

88. The Panel accepted the advice of the Legal Assessor, who referred to an on-line definition of “adequate” as “satisfactory or acceptable in quality or quantity”. The Panel saw no reason not to adopt this.

89. The Panel noted that LJ had confirmed in her written and oral evidence that patient records should contain (a) properly completed consent forms; (b) WHO checklists; (c) records of appointments attended by patients; (d) clinical letters uploaded onto CDA in a timely manner, ideally within 24 hours; (e) clinical notes written contemporaneously and not evidenced by subsequent letters written by the administrator of the medication reporting on the appointment; and (f) a record of the use of Botulinum Toxin on patients.

90. The Panel further noted that Ms Hicklin had indicated that she agreed with a number of the deficiencies in her record keeping and had made either no comment upon the remainder or had not challenged the requirements of record keeping set out by LJ and LK in the audit.

91. Further, the Panel noted that, whilst LJ did not hold herself out as an expert, she was a senior member of the Trust and had significant experience as a Physiotherapist. The Panel therefore saw no reason to doubt her evidence that adequate patient records were not kept by Ms Hicklin.

92. Finally, the Panel reminded itself of the importance of keeping appropriate records of patient treatment, not only to ensure that all necessary checks and safeguards had been made but also to ensure that future clinicians would have a proper record of what treatment a patient had received in the past, which would inform their proposed treatment of that patient. This included in relation to any emergency treatment that might be required in the event of an adverse reaction to the toxin.

93. Taking all these factors into account, the Panel concluded that the HCPC had, on balance, proved Particular 4 in its entirety.

94. In summary, therefore, the Panel found the full Allegation against Ms Hicklin proved.

Harding

As a registered Physiotherapist (PH37504) your fitness to practise is impaired by reason of misconduct. In that:

1. Whilst working for [the employer] between 2008 and 2020, you:

a. knowingly administered the prescription only drug Botulinum Toxin A to the service users set out in Schedule A without: 

(i) having prescriptions in place prior to administering Botulinum Toxin A to them; and/or
(ii) obtaining the informed written consent prior to administering Botulinum Toxin A of the service users in Schedule A; and/or
(iii) informing them that prescriptions for Botulinum Toxin A were not in place.

Found Proved

95. In relation to the stem of the Allegation, the Panel noted that there is no dispute that Mr Harding is a registered Physiotherapist. He acknowledged such by self-referring to the HCPC on 10 October 2020.

96. The Panel took account of Mr Corrie's initial written submissions regarding the suggested general approach as follows:

“52. It is acknowledged that there are a considerable number of patients on each of Schedule A and B. However, it is submitted that whilst, of course, each matter must be considered individually, each of these matters is likely to be determined by the same evidential issues.

53. In relation to allegation 1 a i), ii) and iii) it is submitted that the key issues to consider are whether the Committee is satisfied on the balance of probabilities that:

i. Mr Harding administered the Botulinum Toxin injections to the patient as alleged;
ii. Whether there was a prescription in place or not;
iii. Whether he had obtained written informed consent prior to the administration of the medication;
iv. Whether he informed patients that there was no prescription in place.

54. In these matters the HCPC relies on the results of the audit carried out by AC and AS and the records that have been exhibited.

55. In respect of the fact of the medication having been administered by Mr Harding the Committee is referred to:

i. initial audit which is exhibited as Exhibit 11 [C/1035-1039]
ii. the further audit is exhibited as Exhibit 24 [C/1153-1156]
iii. an annotated version of the further audit is exhibited as Exhibit 28 [C/1170-1171]

56. Further, in oral evidence both AC and AS explained the methodology of the audit and how it was identified that injections had been carried out by Mr Harding. This was a combination of it being apparent from letters he had written to the GP stating that he had injected the patient, from a third party (Ms Skalla [C/1265] or from the invoice. AC explained in his oral evidence that he was able to identify instances when Mr Harding had carried out injections because in order for an invoice to be created a timesheet would have to be submitted and that he was able to ascertain this information by interrogating the system.

57. The HCPC notes that within Exhibit 28 there is reference to assumptions having been made that it was Mr Harding who had injected a patient on the basis that he was allocated to the patient and that it was possible that another employee did it under his supervision. These assumptions relate to a very small number of the instances of alleged injecting. Further, the Committee is reminded of the evidence of AC who stated that it was very unlikely that it was someone else but impossible to rule out. AS stated that it was possible it was someone else but it would have been under his supervision and so Mr Harding would have been responsible for it.

58. Both AC and AS gave evidence to the effect that they were confident that all available records had been reviewed. In fact, AC states that Mr Harding confirmed to him that all the documents he had were scanned onto the system. (Paragraph 27 [C/1099]). Further, both AC and AS gave evidence of the Cliniko record keeping system and as to how records were stored.

59. It is submitted that the panel can therefore be confident that the audit was carried out by review of all relevant records.”

97. Again, as a preliminary matter as suggested by Mr Corrie, the Panel considered whether it was appropriate to rely upon the audits prepared by AC and AS. The Panel reminded itself that it has already found that both witnesses gave compelling and credible evidence, consistent with each other and with their written evidence.

98. The Panel noted that the audits were carried out, with access to all the records available, by two Directors of [the employer], AC and AS, in the course of their professional roles. Further, in respect of the clinical judgments exercised as to the adequacy of the records and what ought to have been present, the Panel took into account that AS was a senior Physiotherapist with the relevant expertise to assess whether the records were acceptable.

99. Moreover, the audits were vital for commercial reasons. What particularly impressed the Panel was that, when it became apparent after the first audit that there were likely other matters to investigate, (following Ms Skalla’s enquiry) AC made further investigations and, to ensure completeness, even extended his investigations to cover all clinicians working in the business. The Panel noted AC’s oral evidence that these additional investigations demonstrated that Mr Harding’s practice was the only one to cause concerns and the only one which violated [the employer]’s policies regarding, for instance, Prescribing and Consent Forms. In addition, the Panel noted that AC used a variety of means to discover patients who had been treated by Mr Harding, such as tracing them from invoices and timesheets which would only have been submitted by Mr Harding. However, the point to be made is that it is apparent that these audits were extremely thorough and therefore that considerable reliance can be placed upon them. In addition, the Panel noted that they appear to have been conducted fairly in that credit was given to Mr Harding when, for instance, prescriptions and adequate consent forms were discovered.

100. Finally, the Panel again confirms that its individual members, independently from each other, went through Appendix A in detail and cross referenced the same with the audits and with the relevant documentation in the Evidence Bundle, and satisfied themselves regarding the accuracy, not only of Appendix A, but also of the audits. Having completed this exercise, the Panel therefore considered that it was able to rely in full upon Appendix A (together with the attached Schedules A and B) and upon the audits.

101. In making its specific decision on subparagraph 1a i, the Panel noted Mr Corrie’s written submissions as follows:

“60. The Committee is invited to find that Mr Harding did inject the patients on the multiple times as alleged in Schedule A.

61. Turning to the issue of whether there were prescriptions in place prior to the medication being injected the HCPC submits that the evidence supports that, on the balance of probabilities, they were not.

62. There were no prescriptions found within the records in relation to the instances when the injections had been provided. It is submitted that this is not simply a mere absence of records but that there is a persuasive amount of contextual evidence which strongly supports this conclusion:

i. Exhibit 9, [the employer]’s Botulinum Toxin Type A Prescription/Storage and Administration Policy [C/1132], makes it clear that not only is there a requirement to store both an electronic and hard copy on the system but that the process involves a prescription being provided to the treating clinician. Both AC and AS gave evidence that Mr Harding was well aware of this policy and, in fact, may even have authored it. In fact, AC told you that he [Mr Harding] used to teach this to others. If there was a prescription in existence, it is submitted that it is highly likely that it would have been stored within the records;

ii. There are instances within the audit in which there were prescriptions which, it is submitted, suggests that when there was a prescription Mr Harding kept it in the records in line with the required policy (eg patients G, S, AB, AD etc see Audit document C/1035 and updated audit document C/1153];

iii. Both AC and AS gave evidence in relation to how Mr Harding would be able to access what is a POM without a prescription. The Committee may have found both their answers illuminating. AC explained that it was possible to abuse the system at the time in that as Clinical Director he was able to order the medication. He said that there were three brands and that this applied to Xeomin. AS explained this further in that she stated that it transpired that Mr Harding had been ordering the medication (again Xeomin) via a commercial contract they had with a prescribing medic and was helping himself to it;

iv. Mr Harding has made some ‘admissions’. In AC’s evidence at paragraph 15 [C/1096] he states that during a meeting with him, Mr Harding and AS [on] 8 October 2020…Mr Harding informed them that he had administered Botulinum Toxin injections without the correct prescription. At paragraph 18 (p1097) AC states that Mr Harding told him that this was on only one occasion. AS gave evidence in relation to the same meeting and her recollection was that the admission made was to the effect it had been on multiple occasions, over a period of years. She recalls Mr Harding being upset and in tears. There are no minutes of this meeting and there is some inconsistency between AS and AC. However, the Committee may feel that this is likely to have been a memorable once in a career type event for AS;

v. In any event, there is a self-referral dated 10 October 2020 (C/1478 -1483) in which he states that ‘I wish to disclose that on a number of occasions I have administered Botulinum Toxin Type A for spasticity without having a prescription. I am not a registered prescriber.” Whilst this is not a specific admission to the allegations as pleaded it is submitted that this admission makes it clear that he accepts that this took place on more than one occasion and that contextually this makes it significantly more likely that the absence of a prescription in the records can properly be inferred to mean that there was no prescription in place.

63. The Committee is invited to find proved allegation 1 a i)”

102. As indicated above, the Panel, through its own individual and collective examination of Appendix A and the audits, had satisfied itself regarding the accuracy of all those documents. For instance, to take a random example, the Panel noted, regarding Patient J, that the audit (at C/1137), confirmed that, although Botulinum was administered on 14 April 2017, there was no prescription and there was no consent form in the records. Further, although there was a letter from Mr Harding to Patient J’s GP (at C/1169) advising what had been injected, the muscles injected and reporting on what Mr Harding had observed, there was no separate treatment note or assessment. In addition, the letter does not indicate that Patient J gave consent for the injection or was advised about the lack of a prescription.

103. To take another random example, the Panel noted, regarding Patient AD, that the second audit (at C/1154), confirmed that Xeomin was administered on 24 March 2020, that a prescription form was completed (C/1375) and that a prescription was issued by Ms Hicklin. However, although there was also a letter to Patient AD’s GP (C/1376) reporting on the treatment, there was no consent form, assessment or treatment note. Furthermore, although there were a number of letters to GPs on file for this patient reporting other administrations of Xeomin/ Botulinum Toxin, there were no other prescription or consent forms in that patient’s records. In addition, none of the letters indicated that discussions about the absence of a prescription took place. There was a documented assessment for 24 June 2022 (C/1378) but otherwise no other assessment nor any treatment notes.

104. Taking these two examples as representative of the accuracy of the audits, Schedule A and of Appendix A, the Panel therefore considered that it was appropriate to extrapolate those findings across the remainder of the patients listed in Schedule A, and to find that, on balance, subparagraph 1a i was proved in its entirety. In doing so, it also accepted Mr Corrie’s submission that Mr Harding must have been aware of the policies regarding prescribing and consent. It agreed that, given his long association, and senior role at [the employer], and the oral evidence of AS, it is more than likely he authored those policies. Moreover, as Mr Harding also lectured and taught extensively on governance issues, he would have been acutely aware of their importance.

105. Finally, as this was specifically referred to by Mr Corrie, the Panel noted the slightly differing accounts of AC and AS regarding the 8 October 2020 meeting. The Panel is minded to prefer AS’ account since AC was not asked about this specific meeting during his oral evidence and because AS gave such a compelling account of the effect upon her of the disclosure that Mr Harding had been administering Botulinum Toxin without prescriptions. Finally, as this was specifically referred to by Mr Corrie, the Panel noted the slightly differing accounts of AC and AS regarding the 8 October 2020 meeting. The Panel is minded to prefer AS’ account since AC was not asked by the Panel about this specific meeting during his oral evidence. The Panel found the account given by AS of the effect on her of Mr Harding’s disclosure that he had been administering Botulinum Toxin without prescription very compelling: “We could not believe his dishonesty and lack of integrity” and because AS gave such a compelling account of the effect upon her of the disclosure that Mr Harding had been administering Botulinum Toxin without prescriptions. In her witness statement AS had said that the audit showed that Mr Harding had been administering Botulinum Toxin without a prescription for 11 years. When asked to elaborate in her oral evidence how she knew this, she replied “we asked him and he admitted it.” She also stated that Mr Harding admitted, to both her and AC during their meeting on 8 October 2020, to many instances of administering the drug without prescription. In answer to Panel questions, she stated that Mr Harding had told them that he had been injecting patients for a long time without the necessary paperwork, including prescriptions: “He burst into tears and could not explain why he had done this”, and that he had burst into tears and could not explain why he had done this. The Panel therefore was minded to accept AS’ account due to her apparently very clear recollection. The Panel wishes to make it clear, however, that this finding is no way reflects adversely upon AC since he was not specifically asked about the meeting where this interaction took place this.

106. In making its specific decision on subparagraphs 1a ii and iii, the Panel noted Mr Corrie’s written submissions as follows:

“64. In relation to the issue of informed written consent. The Council again relies upon the outcome of the audit and submits that the absence of any written consent form is indicative that Mr Harding did not obtain informed consent.

65. It is submitted that it is clear from the aforementioned Botulinum Toxin Type A Prescription/Storage and Administration Policy that this was required and to be kept. Moreover, AS explained in evidence the importance of obtaining and documenting informed consent. Further, she explained what was required in order to obtain informed consent and the importance of it being written down. She said that is it is not written down this is serious in that you cannot assume and there is no record of the conversation.

66. Further, a point relevant to both allegation 1 a ii and iii is that this Committee may feel that the fact that there was no prescription in place is a matter which is material, relevant and important such that the patient should have been informed in order to obtain informed consent.

67. AC when asked whether a patient should be told that there was no prescription in place said that this was a never event. However, it is submitted that whilst it may well be a never event, this makes it all the more important that a patient is aware.

68. The Committee is invited to find allegations 1 a ii and iii proved.”

107. The Panel repeats its finding above, namely that it was satisfied with the accuracy and reliability of the audits, Schedule A and Appendix A. Accordingly, especially as analysis of the two random Patient records set out above also touched upon the issues of consent and discussion about the absence of prescriptions, the Panel had little hesitation in finding subparagraphs 1a ii and 1a iii also proved. In doing so, it took into account the written submissions of Mr Corrie outlined above, with which it agreed and found compelling.

108. The Panel therefore found the entirety of Particular 1a proved.

Particular 1b

“did not maintain adequate records in respect of the Botulinum Toxin A you administered to the service users set out in Schedule B”

109. The Panel once again noted Mr Corrie’s submissions, as follows:

“Record Keeping

69. The HCPC submissions on this are simple. The Committee is invited to rely on the audit for the reasons set out above. It is clear that there were a significant amount of documentation missing across multiple patients. It is submitted that Mr Harding’s record keeping was plainly inadequate to a significant degree.”

110. Once again, the Panel relied upon the audits, Appendix A and, in this instance, Schedule B, for the reasons outlined above. Further, it took account of, and agreed with, Mr Corrie’s submissions.

111. The Panel took particular note of the fact that, when considering the patient records of the two random patients above, there were abundant examples of failures by Mr Harding to keep proper records, including not only the lack of prescriptions (which AC referred to as a “never event”) but also of consent forms, assessments and treatment notes. The Panel agrees with AS that sending a summary of the treatment provided, in a letter to the patient’s GP, does not amount to treatment notes especially since they are not contemporaneous and therefore something could easily not be recorded after the event. In addition, treatment notes should include subjective and objective assessment, clinical diagnosis, record of all aspects of treatment undertaken and plan of further intervention if required. Most, if not all, are not recorded in GP letters. Furthermore, the Panel could not fail but note the evidence of both AC and AS as to how they viewed the absence of such paperwork, particularly AS, who expressed “shock”, “horror” and “disbelief”. Accordingly, as the Panel was more than satisfied with the reliability of the audits as they related to Schedule A, it saw no reason to doubt their reliability in relation to Schedule B (especially given the fact that the random consideration of the records pertaining to Patients J and AD revealed numerous examples of poor record keeping).

112. Consequently, and relying upon the definition of ‘adequate’ referred to before, the Panel considers that Mr Harding’s records were clearly not adequate.

113. For these reasons, the Panel therefore found Particular 1b proved

Particular 1c

“altered a prescription for Botulinium Toxin A that had been issued by Colleague 2 for Service User G”.

Found Proved

114. Once again, the Panel noted Mr Corrie’s submissions as follows:

“70. In oral evidence AC appeared to suggest that there were other instances in which this had occurred. The Committee is reminded that the allegations refer to only one instance of this alleged conduct and must confine its consideration to what is alleged.

71. AC states that Mr Harding amended the prescription for Patient G and that as he is not a prescriber he was not authorised to do this and that any amendments should have been carried out by a prescriber (Paragraph 25 [C/1098].

72. In support of this he refers to Patient G’s notes. The prescribing form appears within Exhibit 38 at [C/1235] and it can be seen that the prescription by Colleague 2 (Ms Hicklin) is dated 25/2/20 and that the medication was recorded as having been administered by Mr Harding. On the form there are the following handwritten amendments:

i. The number of vials is crossed out from x6 to 5
ii. The targeted muscle ‘right flexor digitorum superficialis is crossed out
iii. R subscapularis 50 units Xeomin has been added by hand
iv. Total dose units has been crossed out and 550 has been added by hand.

73. In oral evidence AC conceded that reducing a dose can be acceptable but was clear that a non-prescriber cannot increase a dose without going back to the prescriber. Upon being taken to the prescription he explained that he had added a muscle to inject with 50 units of Xeomin when the original prescription had not identified that muscle. He said you cannot digress from what has been prescribed and that as there was no counter signature from the prescriber it looks like he has done it himself without consulting anyone.

74. The Committee is invited to find this allegation proved.”

115. The Panel confirms that it has put out of its mind the suggestion by AC that there may have been more than one alteration to a prescription carried out by Mr Harding and has confined its deliberations to the one matter that has been put before it.

116. The Panel first considered whether Mr Harding was aware that, as a non-prescriber, he had no authority to amend a prescription. The Panel notes that, in his referral to the HCPC, Mr Harding confirmed that he was a non-prescriber for Botulinum Toxin. Furthermore, the Panel noted that Mr Harding was an extremely experienced physiotherapist who was considered as one of the few physiotherapists who were capable of administering Botulinum Toxin (which requires an ability to target particular muscles). Furthermore, the Panel notes the evidence given by AC and AS that Mr Harding frequently lectured on such matters and therefore the Panel is left in no doubt that Mr Harding was fully aware that, as he was a non-prescriber, he would not have the authority to amend prescriptions. The Panel also heard evidence from AS that, if he considered that a prescription needed to be amended, then he would have to ask the prescriber, in this case Ms Hicklin, to do so.

117. The Panel further notes that both AC and AS identified the handwriting altering the prescription as Mr Harding’s, and the Panel also noted that he not only clearly signed the prescription in his own name but also appended his initials where the alterations were made. The Panel was therefore satisfied that Mr Harding altered the prescription and therefore finds that Particular 1c is proved.

Particular 2

“Your conduct in relation to particulars 1a(i) and 1a(iii) was dishonest in that:

a. You knew a prescription was required;
b. You knew there was no prescription in place”

Found Proved

118. The Panel noted Mr Corrie's written submissions on this particular as follows:

“…78. The Committee is respectfully invited to consider the issue of dishonesty in the following way:
i. Consider whether the act or omission said to be dishonest is proven on the balance of probabilities;
ii. Consider, on the balance of probabilities, what the Registrant’s actual state of knowledge or genuine belief as to the facts was;
iii. Consider whether the Registrant’s actions were dishonest by the standards of ordinary decent people.

79. It is noted that AS referred to Mr Harding’s conduct as dishonest. The Committee is reminded that it is not for a witness to make this judgment and that the Committee must make its own decision in relation.

80. In relation to allegation 1 a i and iii. it is submitted that Mr Harding, as Clinical Director, possibly the author of the policy, someone who teaches others what was required and being extremely experienced in the process must have known that it was necessary to have a prescription. For the same reasons he must have known that this was relevant information about which he should have informed the relevant patients.

81. The HCPC cannot point to any financial gain or motivation but assert that this was dishonest.”

119. The Panel noted the advice of the Legal Assessor who referred to the case of In Ivey v Genting Casinos (UK) Ltd [2017] UKSC 67, where the Supreme Court set down the proper test for dishonesty. Lord Hughes, at para [74], expressed as follows:

“When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.”

120. The Panel applied the three-stage test set out above by Mr Corrie. It noted that it had already found proved Particulars 1a i and 1a iii proved.

121. In relation to the second stage of the test (what Mr Harding's actual state of knowledge or genuine belief as to the facts was) the Panel accepted the evidence of AC and AS that Mr Harding, as Clinical Director, was probably the author of the relevant policies (or if not, was well aware of them, having been at [the employer] for over a decade) and as a teacher as well as an extremely experienced practitioner, must have known that it was necessary to have a prescription before administering Botulinum Toxin. Moreover, the Panel notes that, in his self-referral on 10th October 2020, Mr Harding disclosed that he was fully aware that he could not administer Botulinum Toxin without having a prescription since he stated ”I wish to disclose that on a number of occasions I have administered Botulinum Toxin...without having a prescription. I am not a registered prescriber.” The Panel considers that this is the clearest possible evidence that Mr Harding was aware of his own limitations in this regard.

122. Furthermore, once again due to Mr Harding’s significant experience, the Panel accepts the evidence of AC and AS that he would also have known that, if a prescription was not available, the patient would have to be informed so that they could decide whether or not to give consent for the administration of the drug.

123. The Panel was therefore satisfied that, in each case where Mr Harding administered Botulinum Toxin (a prescription only drug) without a prescription being in place, he must have known that a prescription was required. Furthermore, the absence of the prescription would have self-evidently informed him that there was no prescription in place.

124. The Panel then went on to consider whether Mr Harding's actions were dishonest by the standards of ordinary decent people. The Panel considers that ordinary decent people would consider that giving a prescription only drug without a prescription and without informing the patient that there was not one in place would be dishonest. The patient would be entitled to know, for instance, that all appropriate safety measures had been taken before receiving such an injection, and if not, would expect to be informed so that the patient could decide whether or not to allow Mr Harding to proceed with the injection. For instance, by way of an example of potential patient concerns, the Panel considers that a patient might, knowing that there was no prescription in place, be concerned about the origin of the drug and whether it was safe to use. Withholding that information from a patient would, it is considered by the Panel, be dishonest. Moreover, the Panel also considers that ordinary decent people would find Mr Harding's actions dishonest towards his colleagues, with whom he worked in a private company, who were dependent for their livelihoods on the company's reputation for honest dealings with its clients.

125. Accordingly, the Panel had little hesitation in finding that Mr Harding's conduct in relation to particulars 1a i and 1a iii was dishonest because he knew prescriptions were required and that there were no prescriptions in place on those occasions where he administered botulinum toxin without a prescription.

126. The Panel therefore finds particular 2 proved in full.

Particular 3

“Your conduct in relation to particular 1c was dishonest in that you knew you did not have authority to amend the prescription”.

Found Proved

127. Once again, the Panel took account of Mr Corrie’s written submissions, as follows:

“In regard to allegation 3, the HCPC assert that Mr Harding must have known that he was not authorised to amend a prescription as he did. Again there is no financial gain or motivation evidenced but it is asserted that to amend a prescription knowing that he was not allowed to do so is dishonest.”

128. The Panel paid heed to the three-stage test proposed by Mr Corrie. It noted that it had already found proved that Mr Harding had amended the prescription and also that he knew that he had no authority to do so. This therefore leaves the third question, namely whether Mr Harding’s actions in amending the prescription would be dishonest by the standards of ordinary decent people.

129. The Panel agrees with Mr Corrie. It considers that ordinary decent people would consider Mr Harding’s actions dishonest because they would be concerned that someone who was not a prescriber had assumed a power that they were not entitled to exercise; in other words, Mr Harding was pretending to be something he was not, which is dishonest.

130. The Panel therefore finds Particular 3 proved.

Decision on Impairment

155. In reaching its decision on impairment, the Panel has taken account of the submissions of Mr Corrie and the advice of the Legal Assessor. It has also taken account of the HCPC Practice Note “Fitness to Practise Impairment”.

156. The Panel is aware that, in determining whether fitness to practise is impaired, it must take account of a range of issues which, in essence, comprise two components, namely the ‘personal’ component (the current competence and behaviour of the individual Registrant) and the ‘public’ component (the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession). It appreciates that not every finding of misconduct will automatically result in a Panel concluding that fitness to practice is impaired. Moreover, it cannot adopt a simplistic view and conclude that fitness to practise is not impaired simply on the basis that, since the allegation arose, a Registrant has corrected matters or “learned their lesson”. Although the Panel’s task is not to punish past wrongdoings, it does need to take account of past acts or omissions in determining whether a Registrant’s present fitness to practise is impaired. In addition, when assessing the likelihood of a Registrant causing similar harm in the future, the Panel should take account of both the degree of harm, if any, caused by a Registrant and that Registrant’s culpability for that harm. Finally, the Panel is to consider whether a Registrant has demonstrated insight into their attitude and failings.

157. Once again, the Panel considered each Registrant in turn.

Hicklin

158. The Panel noted Mr Corrie’s submissions on the issue, which stated:

“107. Ms Hicklin has made admissions to the allegations and has within the Trusts’ investigations acknowledged that her conduct was inappropriate.

108. However, to date, there has been no significant evidence of remediation and it is submitted that she remains a risk of repetition. Further, the Committee is invited to consider the wider public interest and whether a finding of impairment is required in this regard.”

159. The Panel first of all considered the personal component. It noted that the Registrant had engaged with the HCPC until three months before the hearing. It also noted that, prior to this, the Registrant had expressed some remorse and had also admitted all the allegations against her, which the Panel considers demonstrates some level of insight into her misconduct.

160. For instance, the Panel notes that, in her letter to the IC dated 12 October 2020, Ms Hicklin stated, in addition to what has been quoted above, the following:

“Response to allegations

I accept all the factual allegations brought against me relating to my practice (allegations 1-4).

I do not wish to hide behind any extenuating circumstances, I am fully accountable for my decisions and actions…

…I provided an inaccurate account of events during the Sandwell & West Birmingham Hospitals NHS Trust (‘SWBH’) investigatory process (allegations 5-6 and 8) and apologise to SWBH and to the HCPC for my dishonesty…

…Since 2019 I have learnt a great deal about governance policies and why they are in place to serve not only practitioners such as me, but all parties. I fully appreciate if I cannot demonstrate stringent governance within my own practice there would be a question about my abilities to ensure they are maintained at every stage of practice.

After being dismissed by SWBH I was employed on a fixed term contract with Worcester Health and Community Trust (‘WHCT’). This was from sponsorship, from September 2019 to March 2020 and then under a formal contract with the Trust, from March to September 2020. This was to support and develop WHCT’s spasticity clinic, as the lead clinician, specialising in the use of botulinum toxin. I provided WHCT with all the documents from the SWBH investigation that lead to my dismissal. WHCT has always been fully aware that I have been referred to the HCPC, and the full nature of the referral. A testimonial from WHCT is provided with this response.

I have made every effort during this employment to demonstrate, learn and develop all the key areas that lead to my dismissal and referral to the HCPC.

Since leaving WHCT I have not secured further employment as a physiotherapist.

I recognise that the Panel is likely to view my accepted actions as misconduct and that my fitness to practise is potentially impaired.”

161. The Panel further noted the reference referred to from CW at WHCT dated 17 September 2020, which states:

“I am writing regarding the work we have been involved with over the past year with Dawn Hicklin. Dawn came to support our Spasticity clinics in Worcestershire Health and Care Trust firstly under an honorary contract and then in a short term contract basis. She commenced work with us in July 2019.

Dawn declared the allegations against her before she started with the honorary contract. My manager and I met with Dawn to discuss the issues regarding her dismissal from Birmingham and Sandwell, which she explained to us as well as providing the report around the incident to my manager. We completed disclosure risk assessments and DBS checks as a result.

Dawn’s role with us was to support our Spasticity clinics in the review of their delivery as well as clinical support to staff as an expert practitioner and non-medical prescriber. She did this to a high standard and shared her clinical expertise and knowledge. She worked very well with all the team members and was extremely supportive to all of them, developing and nurturing their decision making and confidence in patient management.

Having known Dawn for many years as well as the focused recent work she did for our Trust, she showed me no reason to doubt her fitness to practise. She was always clinically professional with patients as well as sharing her expertise and knowledge with the team in order to enhance patient care and experience.”

162. The Panel also took into account the oral evidence of LJ, who confirmed that she did not think that Ms Hicklin had acted maliciously and that her motivation was to provide treatment to patients in an easy way. She described Ms Hicklin as a compassionate clinician who was “extremely competent” and generous with sharing knowledge. She also stated that Ms Hicklin was a “compassionate advocate” for patients.

163. Finally, the Panel reminded itself that Ms Hicklin had asked that she be allowed to voluntarily remove herself from the Register and ceased to engage with the HCPC once that request was refused.

164. However, notwithstanding that Ms Hicklin had demonstrated remorse for her actions as well as some insight, the Panel had no evidence before it that the Registrant had remediated her practice. Further, despite indicating that she has learned “a great deal about governance policies” and that at WHCT she “made every effort during this employment to demonstrate, learn and develop all the key areas that lead to my dismissal and referral to the HCPC”, no details or reflection about such learning has been provided. In short, the Panel considers that, although Ms Hicklin dd have some initial insight, on the evidence before it, any such insight is underdeveloped. There is, in addition, no indication from her that she has maintained her CPD, nor any indication that she has any intention to remediate her misconduct in the future. Consequently, it follows that the Panel cannot be satisfied that Ms Hicklin will not repeat these errors.

165. The Panel therefore concludes that, in relation to the Personal component, Ms Hicklin is and remains currently impaired.

166. In relation to the Public component, the Panel concluded that Ms Hicklin’s misconduct was such that the need to declare and uphold professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were also not made in these circumstances. The Panel believes that a right-minded member of the public, with full knowledge of all of the circumstances, would be concerned if a finding of current impairment were not made.

167. Taking all these factors into account the Panel concludes that the public interest requires a finding of impairment against Ms Hicklin.

168. In conclusion therefore, the Panel finds that Ms Hicklin is impaired under both the personal and the public components.

Harding

169. The Panel noted Mr Corrie’s submissions on the issue, which stated:

“109.Mr Harding has indicated via his representatives that he has retired [SB/34]. In GOC v Clarke [2018] EWCA Civ 1463, the High Court said that, in the consideration of current impairment, the concept of fitness to practise is whether a practitioner is fit to practise currently, rather than a deliberation of whether there is any likelihood of a return to practice, and thereby any risk in the future. Thus it is submitted that the Committee must consider whether Mr Harding is fit to practise if he were to return to practise.

110. Mr Harding did self-refer to the HCPC and within that self-referral he has admitted that he administered Botulinum Toxin A without prescription on a number of occasions. However, as with Ms Hicklin, Mr Harding has not provided any particular evidence of remediation. In the absence of such evidence, it is submitted that Mr Harding remains at risk of repetition and so a risk to the public.”

170. The Panel appreciates that Mr Harding self-referred to the HCPC and made an admission in that referral that he had administered Botulinum Toxin on a number of occasions without a prescription. However, given the wide range of matters found proved and which amount to misconduct, the Panel considers that such an admission was disingenuous and completely lacking in acknowledgment of culpability.

171. The Panel also noted that Mr Harding did make some effort to engage with the proceedings through his representatives initially, but withdrew after his request for Voluntary Removal was rejected. However, at no stage has he provided the HCPC with any reflection, evidence of remediation or insight, or remorse. Essentially, Mr Harding appears to have simply “walked away”.

172. The Panel has already remarked above how, in apparently doing as he pleased, Mr Harding seems to have acted with a sense of entitlement. What the Panel found particularly illuminating, is how he inter-reacted with AC during the investigation and the preparation of the audits by AC. The Panel notes that, initially, Mr Harding sought to portray a different scenario by advising AC that he might be a witness in a case involving Ms Hicklin. The Panel considers that such an action was akin to attempting to cover up any wrongdoing by him. This impression is enhanced by the fact that he did not engage with AC proactively but awaited discovery of his misconduct. Further, AC describes how, when describing one occasion when he injected Botulinum Toxin without a prescription, Mr Harding appeared to blame Ms Hicklin for what he described simply as a “prescription error”. Given what was subsequently discovered by the audits, the Panel considers that such an attitude demonstrated at best an avoidance of responsibility and at worst, a cavalier attitude. Moreover, AC describes a subsequent meeting to discuss the damage to [the employer] that potentially had occurred as well as retirement options for Mr Harding. During such a meeting Mr Harding told AC that he was angry that concerns about him had been raised with the HCPC by AC and AS. The Panel considers that this demonstrated a complete lack of insight by Mr Harding into his actions and the potential damage that he had caused [the employer] and his colleagues.

173. In conclusion, the Panel considers that Mr Harding has provided no evidence of remorse, reflection or insight into his actions and appears to have no intention of doing so in the future. Further, he is not provided any references or testimonials which might have portrayed him in a different light, especially when it was apparent that he was an acknowledged specialist in his field and lectured on the subject. Consequently, it follows that the Panel cannot be satisfied that Mr Harding will not repeat these errors.

174. The Panel therefore concludes that, in relation to the Personal component, Mr Harding is and remains currently impaired.

175. In relation to the Public component, the Panel concluded that Mr Harding’s misconduct was such that the need to declare and uphold professional standards and maintain public confidence in the profession would be undermined if a finding of impairment were also not made in these circumstances. The Panel believes that a right-minded member of the public, with full knowledge of all of the circumstances, would be extremely concerned if a finding of current impairment were not made, especially taking into account the length of time that Mr Harding’s misconduct endured.

176. Taking all these factors into account the Panel concludes that the public interest requires a finding of impairment against Mr Harding.

177. In conclusion therefore, the Panel finds that Mr Harding is impaired under both the personal and the public components.

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

Interim Order
Application for Interim Order

1. Having determined to conclude this case by imposing a Striking Off Order on the Registrants, the Panel heard an application by Mr Corrie for an Interim Suspension Order for 18 months (to cover any appeal period).

Application to proceed in absence

2. However, before asking the Panel to consider such an application, Mr Corrie reminded the Panel that he had to make a further application to proceed in the Registrants absence, in accordance with the Practice Note on Interim Orders, which stated:

3. “If the registrant is absent, the HCPC will first have to make, and the Panel will have to determine, whether to proceed in the registrant’s absence with the HCPC’s application for an interim order and the HCPC will need to show that the registrant has been given notice that an application may be made. Such notice may be contained within the Notice of Final Hearing. As before, the overriding statutory objective of protecting the public and the wider public interest will weigh heavily in favour of an application to proceed in absence, particularly when the Panel has made a finding that fitness to practise is impaired.”

4. Mr Corrie pointed out that the Registrants had been advised in the Notices of Hearing letter dated 23 August 2024 that such an application might be made if the Panel imposed a sanction which removed a registrant’s right to practise, which the Striking Off Order did. He went on to say that the basis of the application to proceed in the Registrants’ collective absences was the same as for the identical applications that he had made at the commencement of the hearing, with the additional factor that the Panel had now found all of the facts proved and had determined that the Registrant should be struck off.

5. The Panel heard and accepted the advice of the Legal Assessor, who repeated his advice given at the commencement of the hearing. The Panel also had regard to the HCPC Practice Notes entitled “Proceeding in the absence of the Registrant” and on “Interim Orders”.

6. The Panel decided to proceed in both the Registrants’ absences. It noted that they had been given appropriate notice of the possibility of an Interim Order being applied for, such being an important part of what the Panel was required to do. Moreover, the Panel had now found all of the allegations against both Registrants proved and had determined that their fitness to practise was impaired and that they should both be made the subject of a Striking Off Order. Accordingly, for the same reasons as previously indicated, which included the Panel’s earlier findings that the Registrants had voluntarily absented themselves from the hearing, the Panel decided to proceed in their absence when considering the applications for Interim Orders.

Application for Interim Suspension Order

7. Mr Corrie submitted that such an order was necessary on both public protection and public interest grounds on the basis that the Panel had found that both Registrants were currently impaired due to their Misconduct and had considered that they both should be made subject to a Striking Off Order since it had concluded that they posed an ongoing risk to the public and had acted in such a serious manner that the ultimate sanction had to be imposed upon them.

8. The Panel accepted the advice of the Legal Assessor, who referred it to paragraphs 133 to 135 of the SP, which state:

“What is an interim order?

133. If a panel imposes a conditions of practice order, suspension order, or striking off order, Article 31 of the Order provides the panel with the discretionary power to also impose an interim conditions of practice order or an interim suspension order. This will apply from the imposition of the substantive order, until the end of the appeal period, or where an appeal is made, the end of the appeal process.
When is an interim order appropriate?

134. The power to impose an interim order is discretionary, and so panels should not consider it to be an automatic outcome. The panel should carefully consider whether or not an interim order is necessary and should provide the parties with an opportunity to address the panel on whether an interim order is required.

135. An interim order is likely to be required in cases where:

• there is a serious and ongoing risk to service users or the public from the registrant’s lack of professional knowledge or skills, conduct, or unmanaged health problems; or
• the allegation is so serious that public confidence in the profession would be seriously harmed if the registrant was allowed to remain in unrestricted practice.”

9. The Panel took account of the Practice Note on Interim Orders and first considered whether an interim order was necessary. It noted that Mr Harding had not practised as a Physiotherapist for over four years since he had been made subject to an Interim Suspension Order in or around October 2020. The Panel also noted that Ms Hicklin had not been subject to any Interim Order and had practised without any issues being raised but had, by the time of the hearing, advised the HCPC that she was no longer working as a Physiotherapist. Moreover, it had found that both Registrants were currently impaired due to their Misconduct. The Panel was therefore satisfied that there was a serious and on-going risk to service users and/or the public and that for the same reasons public confidence in the profession or the regulatory process would be seriously harmed if the Registrants were allowed to remain in unrestricted practice.

10. Having determined that interim orders were necessary, the Panel then considered the appropriate form of such orders, beginning with the least restrictive. It first considered whether an Interim Conditions of Practice Order would be sufficient to protect the public, meet the wider public interest or be in the Registrants’ own interests. For the same reasons as given when deciding not to impose substantive Conditions of Practice Orders on the Registrants (which included the Panel’s concerns about the Registrants being willing or able to comply with such an order) the Panel decided that such an Interim Order would not be appropriate to manage the risks identified by the Panel and that it would be perverse to impose an order inconsistent with the substantive order of Striking Off.

11. The Panel therefore concluded that Interim Suspension Orders were the appropriate and proportionate orders and that they were to be imposed on both Registrants. It also determined that they should each be for a period of 18 months since, if there was any appeal, the substantive orders would not come into effect.

Decision

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 Dawn E Hicklin