Mr David Enstone

: Physiotherapist

: PH93423

: Review Hearing

Date and Time of hearing:12:30 25/10/2017 End: 17:00 25/10/2017

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

: Health Committee
: Suspended

Allegation

By reason of your health, your fitness to practise as a Physiotherapist is impaired

Finding

Preliminary Matters

Service

1.    The Panel was satisfied that notice of today’s hearing had been served on the Registrant at his home address.

Proceeding in absence

2.    The Registrant did not appear nor was he represented. He had not attended the original final hearing on 28-30 September 2015 or the first review hearing in September 2016. 

3.    On behalf of the HCPC, Mr Pye applied for the hearing to be conducted in the absence of the Registrant on the basis that the Registrant had been notified of the date, time and location of the hearing at his registered address. Mr Pye submitted that it was in the public interest for the hearing to proceed expeditiously.

4.    Having considered the HCPTS Practice Note on proceeding in absence and the advice of the Legal Assessor on the case of GMC v Adeogba [2016] EWCA Civ 162 (“the fair, economical, expeditious and efficient disposal of allegations against medical practitioners is of real importance”), the Panel was satisfied that the Registrant had received reasonable notice of today’s hearing.  The Registrant had not applied for an adjournment and had voluntarily absented himself.  There was no indication that he would attend at a later date if today’s hearing were to be adjourned. The Panel noted the overriding public interest in dealing with matters in a timely manner and that this was a mandatory review which had to take place within three days of the date of this hearing. In balancing the Registrant’s interest and the public interest, the Panel decided that the matter should be heard in the absence of the Registrant.

Hearing in Private:

5.    Mr Pye for the HCPC applied for the entirety of the hearing to be held in private on the basis that the evidence concerned the health of the Registrant.

6.    The Panel accepted the advice of the Legal Assessor that Rule 10(1) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 permitted evidence relating to the Registrant’s health to be heard in private for the protection of his private life. The Panel had in mind the principle that all hearings should be held in public whenever possible, subject to exceptional cases where the interests of justice or the protection of the private life of the Registrant or a witness was of greater importance.

7.    In this case, the whole focus of the hearing was on the medical condition of the Registrant and how his condition affects his ability to work. The Panel considered whether the protection of his privacy could be achieved by sitting for only part of the hearing in private, but concluded that it would be impractical to conduct any part of this hearing in public because the Registrant’s personal health matters were so integral to the evidence and the issues of impairment and/or sanction. The Panel therefore concluded that the entirety of the hearing should be held in private in order to protect the private life of the Registrant.

Background

8.    The Registrant qualified as a Physiotherapist in 2009, following a career in the police, and was employed by the Southport and Ormskirk NHS Trust as a Band 2 Bank Therapy Assistant in July 2011.  He was made a Band 5 Physiotherapist in October 2012.  His employment was terminated on 29 November 2013 on the grounds of medical incapacity. 

9.    The Panel at the final hearing found that the Registrant’s fitness to practise was impaired by reason of his medical condition. The nature of his medical condition was so severe that it would adversely affect his judgment and relations with colleagues and service users. The Registrant had failed to accept his medical condition or to obtain treatment. 

10. The Panel considered the personal component in relation to the Registrant’s own practice and any evidence of insight and the public component in relation to the protection of service users and the need to declare and uphold proper professional standards.  The Registrant was found to pose a risk of harm to those in his care.  There was no evidence of insight or remediation.  Fitness to practise was also impaired on public grounds, namely for the protection of the public and maintaining public confidence in the profession.  The Panel at the final hearing imposed a Suspension Order of 12 months.  The case was too serious for any lesser order.

The first review

11. The Registrant did not attend the first review hearing on 22 September 2016.  There was no evidence of improved insight or engagement with medical professionals for treatment of his medical condition.  The Registrant had sent an email to the HCPC dated 26 August 2016 in which he declared that there was no evidence against him in relation to his medical condition. The first Review Panel therefore decided that his fitness to practise remained impaired. On that basis, the Suspension Order was extended for a further 12 months and the Panel directed the HCPC to obtain an updated medical report for the next review hearing.

This review hearing

12. This is the second review.  The Panel read the report dated 7 October 2017 of a Medical Expert.  The Registrant had not responded to requests to attend an appointment, so her report was prepared on the basis of such information as was available to her from the HCPC. On reviewing the Registrant’s medical history and other evidence, the expert concluded that the Registrant did not meet the HCPC Standards of Proficiency for Physiotherapists in relation to the following standards

·         3: understanding the importance of maintaining their own health

·         3.1: understanding the need to maintain high standards of personal and professional conduct

·         9: working appropriately with others

·         9.1: working in partnership with service users, other professionals, support staff and others

·         11: reflecting on and reviewing practice

13. The expert further concluded that the Registrant had a severe lack of insight into his medical condition and found no evidence that he has ever been treated for his delusional disorder with the necessary medication.  The Registrant was unlikely to make a recovery or achieve remission in the absence of such treatment, so his prognosis was poor.  His belief system was so entrenched that it was likely to interfere with his ability to work as part of a multidisciplinary team.

14. The expert attended the hearing to give evidence as directed by the previous Panel. She adopted the content of her expert report as her evidence.  She agreed that it was unusual to make an assessment on the medical records and case papers alone, but the Registrant had declined to be interviewed. She based her conclusions on the previous report of a Medical Expert in 2014, but also found significant other evidence of the Registrant’s medical condition from the Registrant’s own witness statement and emails.

15. Mr Pye for the HCPC reminded the Panel of the history of the case and of their powers as to extending, continuing, varying or revoking the order or imposing another order.  He submitted that the Expert’s report was cogent evidence that the Registrant’s fitness to practise as a Physiotherapist remained impaired. 

16. In relation to sanction, Mr Pye for the HCPC invited the Panel to impose a further Suspension Order of 12 months. The Panel did not yet have the power to consider the sanction of striking off because two years had not quite passed since the Suspension Order came into operation 28 days after the final hearing.

Decision

17. A substantive review is a two stage process.  The first task of the Panel is to decide whether the Registrant’s fitness to practise is currently impaired and if so, to then consider what, if any, sanction should be imposed upon his registration. In reaching its decision, the Panel has considered all the relevant material and had regard to the HCPTS Practice Notes on Impairment and Indicative Sanctions Policy. The Panel accepted the advice of the Legal Assessor.

 

18. The Panel had firmly in mind that the purpose of this hearing was to conduct a thorough appraisal of the Registrant’s current fitness to practise, including an assessment of future risk, and that this was not a rehearing of the original case or previous reviews.

 

19. The Panel accepted the evidence of the expert that the Registrant had an entrenched medical condition, which prevented him from having insight into his condition or the consequent risk to patients if he were permitted to return to unrestricted practice, so there remained a risk to service users.  The Panel therefore concluded that the Registrant’s fitness to practise remained impaired on personal grounds, namely the persistence of his medical condition, the absence of insight and the risk to others.  The Panel also made a finding of impairment in order to maintain public confidence in the profession and the regulatory process.

 

Sanction

20. The nature of the misconduct was too serious to make no order or to impose a Caution Order and neither would provide sufficient public protection.  A Conditions of Practice Order was neither workable nor verifiable without engagement or insight on the part of the Registrant, and there was none.

 

21. The Panel was not able to consider the sanction of Striking Off, because this was a health case and two years had not quite elapsed since the operational date of the Suspension Order.  The Panel therefore concluded that an extension of the current Suspension Order for a period of 12 months was the necessary and proportionate measure to ensure public protection and to maintain public confidence in the profession.  The duration of the extension would allow time for the limited prospect that the Registrant’s condition might improve if he were to start treatment for his disorder.  If that were the case a future Panel may be assisted if the Registrant was able to provide evidence from a medical professional treating him for the said medical condition.    

 

Order

ORDER: The Registrar is directed to suspend the registration of Mr David Enstone for a further period of 12 months on the expiry of the existing Order.

Notes

The order imposed today will apply from 28 October 2017 and will be reviewed before its expiry on 28 October 2018.

Hearing history

History of Hearings for Mr David Enstone

Date Panel Hearing type Outcomes / Status
25/10/2017 Health Committee Review Hearing Suspended
22/09/2016 Health Committee Review Hearing Suspended
16/07/2015 Health Committee Interim Order Review Interim Suspension
27/04/2015 Health Committee Interim Order Review Interim Suspension
05/11/2014 Health Committee Interim Order Application Interim Suspension