Mr Philip Owen

: Physiotherapist

: PH83313

: Final Hearing

Date and Time of hearing:10:00 24/10/2017 End: 17:00 24/10/2017

: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

: Conduct and Competence Committee
: No further action

Allegation

During the course of your employment as a Physiotherapist at

Buckinghamshire Musculoskeletal Integrated Care Service, Care UK, you:

 

1. On or around 24 July 2014, retrospectively altered Patient A's clinical records made on or around 20 May 2014, in that you removed the record 'Agreed to go ahead with referral to orthopaedics to consider epidural injection' and replaced it with 'SOS - advised pt to contact me if symptoms return - may need onward referral if pain returns'.

 

2. Your actions at 1 above were dishonest.

 

3. The matters set out in paragraphs 1-2 constitute misconduct.

 

4. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary matters
Hearing in private
1. Ms Webb made an application for part of the hearing relating to the details of the Registrant’s health to be heard in private. Ms Hastie did not object to the application.

2. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPTS Practice Note “Conducting Hearings in Private”. The Panel decided that the case should be heard in public, with the exception of the evidence relating to the details of the Registrant’s health. It was appropriate to hear part of the hearing in private to protect the Registrant’s private life.
Admissibility of evidence
3. Ms Webb made an application for the unsigned statements of Patient A to be excluded and not admitted as evidence in the case. She referred the Panel to the cases of Ogbonna v NMC [2010] EWCA Civ 1216, R (ex p Bonhoeffer) v GMC [2012] IRLR 37 and Thorneycroft v NMC [2014] EWHC 1565 and set out relevant principles. She submitted that it was not fair for the unsigned statements to be admitted because the HCPC was seeking to rely on the documents to support an extremely serious allegation of dishonesty, and the Registrant and Panel would not have the opportunity to ask questions. She submitted that the draft statements were demonstrably not reliable given inconsistencies with other documents and she provided examples.

4. Ms Hastie submitted that the unsigned statements should be admitted as hearsay evidence and that their hearsay nature could be taken into account when the Panel assess the weight to be given to that evidence. She referred the Panel to the statement of RB, a Legal Assistant at Kingsley Napley LLP. She submitted that this fully and openly details the contact between Kingsley Napley and Patient A and the attempts made to secure the best evidence.

5. The Panel accepted the advice of the Legal Assessor and considered the principles on admissibility of hearsay evidence as summarised in Thorneycroft v NMC.

6. The unsigned statements of Patient A are relied on by the HCPC in support of the allegation of dishonesty. The statements are the only available evidence of Patient A’s recollection of the content of a telephone conversation with the Registrant on 20 May 2014. The HCPC alleges that the Registrant’s alleged alteration on 24 July 2014 of his clinical note of this conversation was dishonest. The Panel noted the seriousness of the allegation of dishonesty and the impact that adverse findings might have on the Registrant’s career. The Panel took into account all the factors referred to in Thorneycroft, but considered that the most important factor in this case was the quality of the evidence. Although the witness statements for Patient A were prepared in a formal manner with a statement of truth, the statements have not been signed by Patient A. He was requested to return signed statements, but did not do so. The Panel was therefore not satisfied that the evidence of Patient A was demonstrably reliable. There was no means of testing the reliability of Patient A’s statement because he is not available to give evidence.

7. The Panel therefore decided not to admit the statements of Patient A.

8.  Ms Webb made a further application for the whole of the draft report from the Health Ombudsman dated 17 November 2016 (provided to the Panel in a redacted form) to be excluded and not admitted as evidence in the case. She submitted that findings from previous investigations by a body or person were not admissible and should not be put before the Panel. She further submitted that the whole report, even as further redacted, should be excluded, because of its unsatisfactory status as a draft report, stated to be provisional, and undated.

9. Ms Hastie agreed that any findings of a previous investigation should be excluded, and she suggested that further redactions could be made to the draft report, to comply with the guidance in Enemewe v NMC [2015] EWHC 20181.

10. The Panel accepted the advice of the Legal Assessor. The Panel decided to admit the draft report of the Ombudsman, but agreed that redactions should be made to paragraphs 12 and 30. The Panel also noted that a date in paragraph 13 of the report appeared to be incorrect. The Panel decided that it was appropriate to admit in evidence the remainder of the report, because it consisted of a factual summary which was not substantially in dispute.
Application for evidence by telephone
11. Ms Webb made an application for three witnesses to give evidence to the Panel by telephone. The three witnesses had each provided a character testimonial. Ms Hastie did not object to the application. Ms Webb explained that she relied on the witness evidence as to the Registrant’s character in relation to the allegation of dishonesty.

12. The Panel agreed to Ms Webb’s application. The witness evidence was relevant and there would be an opportunity for Ms Hastie and the Panel to ask questions.

Background:
13. The Registrant was employed as a Physiotherapist by Buckinghamshire Musculoskeletal Integrated Care Service, Care UK (Care UK) from October 2013 until he relocated in July 2015.

14. Patient A was referred to Care UK in September 2013 due to problems with his lumbar spine. In November 2013, Patient A attended two physiotherapy sessions with the Registrant. There was no improvement with physiotherapy treatment.  An initial MRI scan was unclear and a contrast MRI scan was ordered. When the Registrant received a copy of the scan report in May 2014, he contacted the Clinical Lead by e-mail asking whether a referral to spinal orthopaedics was appropriate. On 20 May 2014 the Clinical Lead responded stating that Patient A should be referred. On the same day, the Registrant telephoned Patient A. He later made a record in the clinical notes of his conversation with Patient A. He made the following record: “Phoned pt to discuss MRI report. Reports symptoms have somewhat been better for the past wek, reducing medication at present, but still taking naproxen and tramadol. No leg symptoms at present, still some back pain. Agreed to go ahead with referral to orthopaedics to consider epidural injection”. Patient A was not referred to spinal orthopaedics at that time.

15.  On 5 June 2014 Patient A requested copies of his clinical notes. The Registrant was subsequently alerted by a member of the administrative team that Patient A had requested his notes. The Registrant later completed Patient A’s discharge letter and sent this to Patient A’s GP.

16. On 28 July 2014, after receiving a copy of his clinical notes, Patient A sent a written complaint to Care UK. Within the complaint, Patient A questioned why he had been discharged when his notes for 20 May 2014 stated “Agreed to go ahead with referral to orthopaedics to consider epidural injection”.

17. Care UK checked Patient A’s clinical records. The entry in the notes for 20 May 2014 read: “Phoned pt to discuss MRI report. Reports symptoms have somewhat been better for the past week, reducing medication at present, but still taking naproxen and tramadol. No leg symptoms at present, still some back pain. SOS – advised pt to contact me if symptoms return – may need onward referral if pain returns”.

18. Following recommendation of the Clinical Lead, Deputy Service Manager of Care UK, EW, sent an e-mail to the Registrant dated 12 August 2014 asking whether he was happy to call PA and discuss onward referral with him. EW referred to the last note on 20 May 2014 and asked “presumably he hasn’t contacted you to request referral”. The Registrant replied on 12 August 2014 stating he that would call Patient A. In relation to the note on 20 May 2014 the Registrant stated: “When I last spoke to him on the phone following receipt of his MRI results he reported that his pain was much better. We discussed whether to refer him or not and decided that at present this was not necessary as his pain was settling and he was reducing his medication.”

19. The Registrant sent an e-mail to the administration team on 13 August 2014 stating that he had written a referral letter for Patient A and asking for the letter to be sent that day.

20. EW responded to Patient A’s complaints on the basis of the clinical notes as for 20 May 2014, as they appeared in Care UK’s record, on 25 August 2014. Patient A wrote a further letter dated 24 September 2014 referring to the clinical notes he had received from Care UK which had a different entry for 20 May 2014. Care UK accessed the archived copy of the notes sent to Patient A. The archived copy confirmed the discrepancy in the notes.

21. On 24 October 2014 EW spoke to the Registrant as part of an internal investigation into Patient A’s complaint. There is no written record of the conversation between EW and the Registrant.

22. On 4 November 2014 the Managing Director of Care UK sent a letter to Patient A responding to his complaint. Patient A did not receive this letter and a further copy was sent to Patient A on 27 July 2015.

23. In early 2015 Patient A raised a complaint with the Health Ombudsman and on 15 February 2015 Care UK received a letter from the Ombudsman advising that further information was required. Care UK asked the IT department to investigate the discrepancy in Patient A’s notes. On 22 February 2016 IT provided an audit log which showed that the Registrant had changed Patient A’s notes on 24 July 2014 at 9.42 a.m.

Decision on Facts:
24. The Panel carefully read the HCPC exhibits bundle (as further redacted) and the Registrant’s bundle. The Panel read the production statement of RB, but was careful to entirely exclude from its consideration the evidence it had not admitted.

25. The Panel heard evidence from the HCPC witness MS, Service Manager at Care UK. The Panel found MS’s evidence was credible and fair. Her evidence related primarily to the background, as set out above, which is not in dispute.

26. The Panel heard evidence from the Registrant. The Panel found that the Registrant was a credible witness. With the benefit of hindsight, the Registrant was willing to accept that his original clinical note on 20 May 2014 was likely to have been correct, and that his later recollection of the conversation with Patient A incorrect. He was also frank in stating that he did not have recollection of certain matters. In his evidence the Registrant was tentative in some of his answers. The Panel’s assessment was that this presentation was due to the Registrant’s understandable anxiety and to his recognition that his behaviour, in amending the notes he admitted, had been unprofessional.

27. The Panel heard evidence from three witnesses in relation to the Registrant’s character: AH, Physiotherapy Manager at Nuffield Health Hospital; EO, Chartered Physiotherapist at Nuffield Health Hospital; and CH, Company Director of Harding Physiotherapy. The three witnesses confirmed that they were aware of the Allegation that the Registrant faces, including dishonesty. EO confirmed in her evidence that she had a detailed discussion with the Registrant about the background and circumstances of the Allegation.

28. The Panel also read further character references contained in the Registrant’s bundle. The character evidence, taken as a whole, confirms that the Registrant is a well-respected, meticulous, and honest Physiotherapist. The Panel took the good character evidence into account in its assessment of the Registrant’s credibility and as part of its assessment of whether the Registrant was likely to have been dishonest as alleged. The Panel gave weight to the character evidence because they found that it was consistent, from individuals who had known the Registrant for a sufficient period of time and from individuals who are fully aware of the HCPC Allegation.
Particular 1
29. The Panel found particular 1 proved by the evidence of MS, the documentary evidence, the evidence of the Registrant and the Registrant’s admission.
Particular 2
30.  The Panel considered the two stage test for dishonesty. The first question is to consider, on the balance of probabilities, did the Registrant act dishonesty by the standards of ordinary and honest members of the profession. If the Registrant’s conduct of altering the record is considered objectively, without reference to his subjective state of mind, the Panel considered that his conduct was dishonest, both by the standards of ordinary and honest members of the profession and by the standards of honest and reasonable people. It appears dishonest to alter a record without indicating on the record that an amendment has been made. The record, as amended, gave the impression to the reader that the entry was made on 20 May 2014, when it was not. The correct way for a Physiotherapist to amend a clinical record, as confirmed by MS in her evidence, is that the amendment should be made in a way to ensure that the original entry is still legible and should provide a reason for the correction.

31. The second part of the test is whether, on the balance of probabilities, the Registrant realised that what he was doing was by those standards dishonest. In considering this question the Panel carefully considered the inferences it could draw from the evidence about the Registrant’s state of mind at the time he made the alteration to the clinical record on 24 July 2014.

32. The Panel noted that the HCPC’s evidence relating to Patient A’s conversation with the Registrant on 20 May 2014 is limited. There is the clinical note of the conversation which was made within hours of that conversation, but there is no evidence from Patient A about the content of the conversation. The Registrant’s evidence is his current recollection of the conversation, which he acknowledges may not be correct.

33. Both Ms Hastie and Ms Webb invited the Panel to consider the context of the Registrant’s actions on 24 July 2014. The Registrant gives a description of the working environment in which he felt under stress and pressure because of the limited time available to complete administrative tasks. This environment, he believed, increased the risk of error in clinical notes. In this context, it is credible that he genuinely believed on 24 July 2014 that his clinical note made on 20 May 2014 was incorrect.

34. The Registrant looked at Patient A’s notes because he was invited to do so by a member of the administrative team. This was the normal practice at Care UK prior to sending clinical notes to a Patient. This was not a situation where the Registrant realised that he had done something wrong and accessed the notes on his own initiative.

35. In the Panel’s view the most important feature of the context of the events on 24 July 2014 was that the Registrant knew that Patient A had requested his clinical notes and that the notes would be sent to Patient A. He also knew that Patient A had been unhappy with his earlier care. He therefore knew that if he made a dishonest entry in the notes it would be picked up and challenged by Patient A. In the Panel’s view, this was not a situation in which the Registrant could have realistically believed that a dishonest action would cover up anything.

36. Ms Hastie invited the Panel to infer that the Registrant was motivated to alter the notes in order to cover up the fact that he had not referred Patient A for an orthopaedic opinion and to avoid a complaint from Patient A. The Panel did not draw this inference. The Registrant could have made a late and expedited referral of Patient A to the orthopaedic department. He might have faced some criticism for the delay, but the Panel accepted the Registrant’s evidence that this would not have been significant in his mind. 

37. Ms Hastie also invited the Panel to draw a negative inference about the Registrant’s state of mind from his failure to volunteer the information that he had changed Patient A’s record when he later responded to and spoke to EW. In the Panel’s view, there were reasons, other than dishonesty, why the Registrant would not volunteer the information. The Registrant knew that he had not changed the record in a transparent way. Given that he changed the record in the way that he did, it is likely that he did not volunteer information because he understood that he had not acted professionally.

38. Ms Hastie also invited the Panel to draw an inference from the evidence relating to the Registrant’s late referral of Patient A to the orthopaedic department. Ms Hastie suggested that the Registrant did not telephone Patient A prior to the referral. The HCPC evidence in the form of the chronology prepared by EW indicates that the Registrant may have telephoned Patient A. The Registrant has no recollection. On this evidence, the Panel did not find that the HCPC has proved that the Registrant did not call Patient A prior to the late referral on 13 August 2014.

39. The Panel concluded, on the balance of probabilities, that the Registrant genuinely believed on 24 July 2014 that the entry he had previously made on 20 May 2014 was incorrect. He made the change in an entirely inappropriate and unprofessional way which he describes as “stupid”. However, he did not realise that what he was making was a false entry. The Panel therefore decided that particular 2 is not proved.
Decision on Grounds:
40. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in Roylance v GMC (No2) [2001] 1 AC 311: “Misconduct is a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a …practitioner in the particular circumstances”. The conduct must be serious in that it falls well below the required standards. The question of whether the proven fact constitutes misconduct is for the judgment of the Panel and there is no burden or standard of proof.
41. In the Panel’s judgment the Registrant’s amendment of the record was a serious breach of the HCPC Standards of Conduct Performance and Ethics standard 10 “you must keep accurate records”. Standard 10 sets out very clearly: “If you update a record, you must not delete information that was previously there, or make that information difficult to read. Instead, you must mark it in some way (for example, by drawing a line through the old information)”.
42. The Registrant’s decision to change the record of Patient A was a deliberate act. It is not common practice to alter a patient record. The Registrant did not seek advice from a manager or discuss the matter with other colleagues. The way in which he changed the record lacked the required transparency. He acted without giving any consideration to professional standards or the potential consequences of his actions. This was not equivalent to an alteration of a patient record which might be made to correct a minor error. In the Panel’s view it is significantly more serious.
43. Although this was a one off incident, it was a serious falling short of the standards that are expected of a Physiotherapist. The Panel decided that the Registrant’s conduct in particular 1 fell so far below the required standards that it constituted misconduct.
Decision on impairment:
44. The Panel applied the guidance in the HCPTS Practice Note “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.
45. The Panel first considered the personal component, which is the Registrant’s current behaviour. The Registrant gave further evidence to the Panel. He confirmed the evidence of his remediation and reflection as set out in his witness statement. The Registrant sets out relevant documents he has considered, training he has completed and written reflective statements he has completed.
46. The Registrant was asked by the Panel whether he has faced the situation of considering the alteration of a patient record. He explained that he has not faced that situation. However, he explained the steps he would take, complying with the HCPC standards. He also said that he recognised that the alteration of a patient record is an unusual step and that he would take advice from others.
47. The Panel had independent evidence to confirm the quality of the Registrant’s current record keeping from the Registrant’s character witness AH, who explained that the audits on the record keeping for the Registrant record a score of 97% against an expected standard of 80%.
48. In his statement, the Registrant is self-critical of his actions and takes personal responsibility. He expresses his regret for the impact of his actions on Patient A, Care UK, and the physiotherapy profession. His oral evidence was consistent with his written statement. The Panel was impressed by the Registrant’s remediation and the level of insight he demonstrated.
49. Taking into account the remediation and the Registrant’s insight, the Panel found that the risk of repetition of similar misconduct was not higher than for any Physiotherapist. The Panel therefore found that the Registrant’s fitness to practise is not impaired on the basis of the personal component.
50. The Panel next considered the public component. In this case the Panel did not identify any patient safety concerns because the Panel has found that the risk of repetition of similar misconduct is very low.
51. The Panel next considered the need to uphold standards of conduct and behaviour. The Panel’s view was that, although a member of the public would be reassured that there is no ongoing risk to the public, they would be concerned about the Registrant’s serious breach of the HCPC standards. The Panel took into account both the degree of the Registrant’s culpability and the seriousness of the consequences of his behaviour. The Registrant’s own description of his actions are that his behaviour was unacceptable, unprofessional, and he is embarrassed by it. He recognised that his behaviour had consequences for Patient A, Care UK and the profession. The Panel’s view was that an informed member of the public would expect the Panel to mark the seriousness of the Registrant’s conduct and the serious degree to which he is culpable.
52. The Panel considered whether the fitness to practice process itself and the public hearing was sufficient to maintain confidence in the profession and to uphold standards, but decided that the Registrant’s actions were sufficiently serious that a finding of current impairment was required. A finding was necessary to send a very clear message to Physiotherapists that the action of altering a record retrospectively, but without the required transparency, is entirely unacceptable.
53. The Panel therefore decided that the Registrant’s current fitness to practise is impaired on the basis of the public component. 
Decision on Sanction:
54. In considering what, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy (ISP) and the advice of the Legal Assessor.
55. The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in particular, it sought to balance the interests of the public with those of the Registrant, and imposed the sanction which was the least restrictive in the circumstances commensurate with its duty of protection.
56. The Panel heard submissions from Ms Hastie and Ms Webb. In her submissions, Ms Webb provided an update on the Registrant’s current circumstances. He continues to receive the support of his employers. There have been no disciplinary matters or concerns. On his own initiative, the Registrant has made a request to his employers to reduce his hours on a Tuesday. This is to assist the Registrant in maintaining an appropriate and healthy balance between his work and his life.
57. The Panel identified in its determination on impairment the serious features of this case which indicated a finding that the Registrant’s fitness to practise is impaired on the basis of the public component. The Panel did not identify any aggravating matters beyond those highlighted in its decision on impairment.
58. The Panel decided that the mitigating features include:
• the isolated nature of the incident;
• the positive character references;
• the absence of any previous fitness to practise history;
• the Registrant’s admissions, apology and remorse;
• the background circumstances including the Registrant’s health and the difficulties arising from the working environment.
59. The Panel first considered the option of imposing no sanction. The ISP provides the following guidance: “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”.
60. The Panel considered carefully whether the Registrant’s case fell into this exceptional category. This is a case where the finding of impairment was reached on the wider public interest grounds only, the Registrant has insight and has taken remedial action. The risk of repetition is no higher than for any other Registrant. The Panel therefore considered that this guidance in the ISP was applicable.
61. The Panel decided that the finding of impairment it has made was sufficient to mark the seriousness of the Registrant’s conduct, maintain confidence in the profession and its regulatory processes and act as a deterrent to other registrants. The Panel’s finding on impairment is recorded as a public document. It forms part of the Registrant’s fitness to practise history should any further issues arise. The Registrant will be obliged to honestly disclose his history when any enquiries are made by prospective employers.
62. The Panel decided that the option of imposing no sanction was appropriate and proportionate in all the circumstances.
63. The Panel considered imposing a Caution Order, but decided that in this case a Caution Order would be disproportionate. In particular, the Panel found that the Registrant’s fitness to practise is not impaired on the basis of the personal component. There are also relevant mitigating factors in this case. Members of the public would be reassured that the Panel has taken the appropriate action to mark the disapproval of the Registrant’s misconduct by its determination that his fitness to practise is impaired on the basis of the public component.
64. The Panel therefore made no order.

Order

No information currently available

Notes

Reconvened Final Hearing of the Conduct and Competence Committee (which started on 12 - 13 July) and took place at 405 Kennington road, London on Tuesday 24 October 2017.

 

Hearing history

History of Hearings for Mr Philip Owen

Date Panel Hearing type Outcomes / Status
24/10/2017 Conduct and Competence Committee Final Hearing No further action
12/07/2017 Conduct and Competence Committee Final Hearing Adjourned part heard