Mark Stubbins

: Physiotherapist

: PH68331

: Final Hearing

Date and Time of hearing:10:00 27/02/2017 End: 17:00 02/03/2017

: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: Suspended

Allegation

Allegation:
(As amended at the hearing on 27 February 2017)
During the course of your employment as a Physiotherapist at Manchester /Liverpool Physio from 27 February 2012 to 2 April 2014:
1) You did not keep accurate and/or adequate records, in that: you did not make notes for a number of patients and / or patient treatment sessions.
2) When asked to return the notes for the above-mentioned patients and / or patient treatment sessions to the clinic:
a) You returned notes which were virtually identical and / or duplicated each other, for different patients;
b) You referred to the wrong body parts in some of your clinical notes;
c) You inserted copies of the same body chart in several sets of the notes, and changed the dates on the body charts;
d) You provided inconsistent notes;
e) You provided incomplete notes, and, or
f) You provided inaccurate notes.
3) The above-mentioned notes were written and/or typed retrospectively.
4) Your actions at paragraphs 2a, 2c and/or 3 above were dishonest.
5) The matters set out in paragraph(s) 1-3 constitute misconduct.
6) By reason of your misconduct and / or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters:
Application to amend Particular 4:
1. At the end of the HCPC case, Ms Turner applied to amend particular 4 of the allegation to read “Your actions at paragraphs 2a, 2c and/or 3 above were dishonest”. This application was not opposed by Ms McKinlay. Having taken advice from the Legal Assessor, and having decided that no unfairness was cause the Registrant, the Panel allowed the amendment to be made.
Background:
2. The Registrant worked at Manchester Physio (the Company) as a self-employed Associate Physiotherapist from 27 February 2012.
3. At some time in 2013, other physiotherapists in the Company reported to the clinical director that they were unable to find records of appointments which the Registrant had had with patients. Subsequently, an audit revealed that a large number of the Registrant’s case notes could not be found.
4. On 7 December 2013, the Clinical Director asked the Registrant to return the missing patient notes, which the Registrant did by 21 January 2014. In February 2014, as a result of further problems in locating the Registrant’s notes, the Registrant was advised that he was not adhering to record-keeping standards. The Registrant agreed to provide all missing patient notes.
5. A subsequent review of the Registrant’s patient notes, from 2013 to 2014, revealed that 228 sets of patient notes were missing. On 4 May 2014, the Company emailed a list of missing notes to the Registrant and on 28 May 2014, the Registrant returned 228 sets of patient notes.
6. When the Clinical Director reviewed the 228 sets of notes, he found that many had been produced electronically; others were handwritten; two body charts had been completed which had been photocopied approximately 110 times and slotted into each of the 228 patient files, the same notes had been reproduced for different patients and some assessments were for the wrong body part.
Decision on Facts:
7. The Panel heard oral evidence from one witnesses called on behalf of the HCPC; JB, Clinical Director at the Company and from the Registrant.
8. The Panel found the evidence of JB was generally credible although he lacked clarity and was affected by the passage of time since the events. The Panel was satisfied that he had no motive to exaggerate any evidence against the Registrant.
9. In relation to the Registrant’s evidence, whilst he admitted all of the particulars of the allegation, including dishonesty and misconduct, the Panel found that, at times, he sought to justify his actions by referring to doing what he was asked to do by the Company, and failed to fully appreciate the extent of his responsibilities as a Registered Physiotherapist.
10. The Panel had two bundles of documents consisting of a core bundle of service documents and witness statements, numbered pages 1 – 40 and an exhibits bundle numbered pages 1 – 337. The Panel was also presented with documents on behalf of the Registrant consisting of two “email trails” between himself and the company between April and May 2014.
11. The Panel received and accepted the Legal Assessor's advice. In making its factual findings, the Panel accepted the Registrant’s admissions in their entirety. The Panel made the following findings in relation to the particulars of the allegation:
Particular 1 – Proved
12. The Panel had regard to the evidence of JB and to the Registrant’s admission that at the time alleged, he did not keep accurate records and did not make patient notes.
Particular 2 a) – Proved
13. The Panel accepted the Registrant’s admission, supported by JB’s evidence, that he had returned patient notes which he had duplicated and were virtually identical.  This was also exemplified by the Panel’s examination of the notes for Patients 7 and 39 which are virtually identical.
Particular 2b) – Proved
14. The Registrant’s reference in some of the clinical notes to wrong body parts was apparent from the notes, exemplified by the Panel’s examination of the notes for Patients 50, 51 and 52 and by the Registrant’s admission.
Particular 2 c) – Proved
15. An examination of the clinical notes for Patients 2 and 9 demonstrated how the same body charts had been inserted into different notes and was consistent with the Registrant’s admission.
Particular 2d) – Proved
16. The Registrant admitted that he provided inconsistent notes which is also exemplified in the notes of Patient 321, whose past medical history was noted as including asthma, for which the patient was receiving treatment. However the Registrant had crossed out “asthma” in the notes which he returned to the Company.
Particular 2e) - Proved
17. The Registrant admitted that his notes were incomplete and it is also apparent from an examination of them, exemplified by the notes relating to Patient 98 which have been left blank.
Particular 2f) – Proved
18. The Registrant admitted that he provided inaccurate patient notes, exemplified by the clinical notes of Patient 33 which state that the patient had a gradual onset of neck pain when in fact that patient had been referred for an assessment as to fitness to be a heavy vehicle technician.
Particular 3 – Proved
19. The Panel noted the Registrant’s admission that he had created the returned patient notes retrospectively and JB’s evidence that the Registrant had gone through the notes and changed the dates so as to make it appear that he had written the notes at the time.
Particular 4 – Proved
20. The Panel was satisfied that returning duplicated/identical notes, inserting copies of body charts in several sets of notes and changing the dates on the body charts and creating notes retrospectively, would be regarded as dishonest by the ordinary reasonable person. The Panel was further satisfied by his admission, that the Registrant knew that these actions would be regarded as dishonest. The Panel was also satisfied that, even if the Registrant may have thought that the company was aware of his actions, these would still be regarded as dishonest by ordinary reasonable people.
Decision on Grounds:
21. The Panel was satisfied that the Registrant had breached the following standards set out in the HCPC Standards of Conduct, Performance and Ethics, applicable from 2008.
• 1 - You must act in the best interests of service users.
• 7 - You must communicate properly and effectively with service users and other practitioners;
• 10 - You must keep accurate records;
• 13 - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
22. The Panel considered each of the facts found proved separately. The Panel considered that the proved facts had the potential to cause harm to a large number of service users over a prolonged period of time. The Panel takes the view that the matters found proved, including serious dishonesty, did not amount to an isolated incident and fell far below the standards to be expected of a registered Physiotherapist.
23. Accordingly the Panel was satisfied that misconduct has been established in respect of all the proven particulars.
Decision on Impairment: 
24. The Panel considered that the Registrant’s misconduct had caused unwarranted risk of harm to a large number of service users over a prolonged period, had breached fundamental tenets of the profession and had brought it into disrepute. Further, the Registrant’s integrity could not be relied upon through his serious dishonesty.
25. The Panel had regard to the Registrant’s oral evidence and admissions and accepted that he had shown remorse and some insight. The Panel noted the Registrant’s further admission of recent record keeping problems which occurred in October 2016.
26. In relation to the personal component of current impairment, the Panel was provided with insufficient evidence to satisfy it that the Registrant’s misconduct was highly unlikely to be repeated. Further, the Panel was mindful that the Registrant’s misconduct involved repeated failings after he had initially been warned about the state of his records by the Company. The Registrant’s misconduct also involved serious dishonesty and this was not an isolated incident. For these reasons, the Panel considered that there was a strong public component for a finding of current impairment. The Panel concluded that public confidence in the profession and the regulatory process would be undermined, if a finding of current impairment was not made.
27. Accordingly, the Panel determined that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction:
28. The Panel considered the submissions made by Ms Turner on behalf of the HCPC and those of Ms McKinlay on behalf of the Registrant. The Panel received and accepted the advice of the Legal Assessor.
29. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour and to serve as deterrent to others.
30. The Panel had regard to the Indicative Sanctions Policy. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.
31. In determining the appropriate and proportionate sanction, the Panel had regard to its findings of fact and misconduct and that the Registrant’s fitness to practise is currently impaired on both the personal component and, significantly, on public interest grounds.
32. The Panel had regard to paragraph 9 of the Indicative Sanctions Policy which states,
"Even if a Panel has determined that fitness to practise is impaired, it is not obliged to impose a sanction. This is likely to be an exceptional outcome but, for example, may be appropriate in cases where a finding of impairment has been reached on the wider public interest grounds identified above but where the registrant has insight, has already taken remedial action and there is no risk of repetition".
33. In deciding whether to impose any sanction, the Panel had regard to paragraph 14 of the Indicative Sanctions Policy which states,
"The degree of insight displayed by a registrant is central to a proper determination of whether fitness to practise is impaired and, if so, what sanction (if any) is required. The issues which the Panel need to consider include whether the registrant: 
• has admitted or recognised any wrongdoing;
• has genuinely recognised his or her failings;
• has taken or is taking any appropriate remedial action;
• is likely to repeat or compound that wrongdoing.
34. The Panel has already acknowledged that the Registrant has shown some insight and has demonstrated remorse. However, the Panel was also mindful of its findings that the Registrant’s misconduct potentially caused harm to a large number of service users, occurred over a prolonged period of time and also involved serious dishonesty, all of which are aggravating factors. Mitigating factors are that the Registrant admitted all matters; has engaged with this process; has volunteered information concerning recent difficulties with his record keeping and appears to be otherwise a good physiotherapist of previous good character.
35. Given the seriousness of the matters found proved, the Panel considered that it was necessary to impose a sanction in this case and that taking no action or imposing a caution would not be appropriate or proportionate. For the same reasons, the Panel considered that this was not an appropriate case for mediation.
36. The Panel next considered whether a Conditions of Practice Order was appropriate and proportionate. It had regard to the nature of the matters found proved which did not involve clinical failings capable of being remedied through retraining or supervision. The Panel considered that the misconduct arose as a result of attitudinal problems for which appropriate and workable conditions of practice could not be formulated. Furthermore, the case involved dishonesty and serious misconduct. The Panel could not formulate conditions which would satisfactorily protect the public or satisfy the wider public interest.
37. The Panel next considered a Suspension Order and had regard to the Indicative Sanctions Policy which states that such an order was appropriate where remediation was possible and where a Registrant had demonstrated some insight. The Panel considered that a Suspension Order would reflect the seriousness of the matters found proved. It would also afford the Registrant the opportunity to provide evidence that he has fully remedied his misconduct.
38. Given the Registrant’s full admissions to the Particulars of the Allegation, his remorse, limited insight and his volunteering of information concerning recent deficiencies in his record-keeping, the Panel considered that a Striking Off Order would be disproportionate at this time. Accordingly, the Panel determined that there should be a Suspension Order for 12 months. The period of 12 months reflects the seriousness of the misconduct and dishonesty.
39. This order will be reviewed prior to coming to an end. A reviewing Panel would be assisted by a reflective piece which demonstrates a full understanding of the potential risk the Registrant’s identified behaviour has posed to service users, along with the impact that behaviour of this nature has upon the profession as a whole. The reviewing Panel would also be assisted by relevant references or testimonials and evidence that the Registrant has kept himself up do date with his continuing professional development.

Order

That the Registrar is directed to suspend the registration of Mark Stubbins for a period of 12 months from the date this Order comes into effect (the operative date).

Notes

Interim Order:
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work 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.

 

Hearing history

History of Hearings for Mark Stubbins

Date Panel Hearing type Outcomes / Status
27/02/2017 Conduct and Competence Committee Final Hearing Suspended