Daniel Newman

: Chiropodist / podiatrist

: CH12169

: Final Hearing

Date and Time of hearing:10:00 30/10/2017 End: 17:00 03/11/2017

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

: Conduct and Competence Committee
: Conditions of Practice

Allegation

(As amended at the Substantive Hearing)

 

Whilst registered as a Podiatrist and during the course of your employment as a Band 8a Podiatrist with Bromley Healthcare, you:

 

1. On or around 13 April 2015, treated Patient A, and:

 

a. behaved in a rude and I or condescending and I or patronising manner towards Patient A;

 

2. On or around 10 April 2015, treated Patient B, and:

 

a. behaved in a rude and I or arrogant manner towards Patient B;

 

b. stated to Patient B, 'you're on stand-by, I will see you when I'm ready', or words to that effect.

 

3. On or around 28 May 2015, treated Patient C, and:

 

a. took a swab of Patient C's toe but did not record this;

 

b. did not send the swab to the Pathology laboratory for analysis

 

c. behaved in a rude and I or arrogant manner towards Patient C.

 

4. In relation to Patient D, over a course of treatment:

 

a. behaved in a rude and arrogant manner towards Patient D;

 

b. blamed Patient D for smoking;

 

c. blamed Patient D for not controlling her diabetes;

 

d. told Patient D off for not bringing her own dressings with her;

 

e. bandaged Patient D's foot too tightly.

 

5. In relation to Patient E, over a course of treatment:

 

a. behaved in a rude and arrogant manner towards Patient E;

 

b. acted in a rough manner during treatment;

 

c. did not dress Patient E's toes properly.

 

6. Between March 2015 and July 2015, retrospectively cancelled approximately 57 domiciliary appointments with high-risk patients on the EMIS system, and you:

 

a. did not undertake and I or record the visits; and I or

 

b. did not record the reasons for cancellation; and I or

 

c. did not re-schedule appointments.

 

7. In the case of Patient G, the clinical record indicated that podiatry treatment was completed on 13 May 2015 and you booked appointments for 14 July 2015 and 16 July 2015 which were cancelled retrospectively on 15 July 2015 and 17 July 2015.

 

8. In the case of Patient M, you:

 

a. made an appointment for 13 May 2015 which was retrospectively cancelled on or around 21 May 20 15;

 

b. made a further appointment for 26 May 2015, and you:

 

i. did not record that the consultation had taken place on 26 May 2015;

 

ii. received an email from Patient M's daughter raising concerns about Patient M's dressing;

 

iii. retrospectively cancelled the appointment for 26 May 2015 on 27 May 2015, three hours after receiving the email referred to in paragraph 8 (b) (ii).

 

9. Changed an appointment booked for 13 May 2015 to "seen and left" on or around 15 May 2015 and did not undertake and I or record a consultation until 18 May 2015.

 

10. Recorded a number of appointments and I or cancellations for two patients at Global House but no podiatry clinics are held there.

 

11. The actions described in Paragraphs 8 (b) (iii) is dishonest.

 

12. The matters set out in Paragraph 11 constitute misconduct.

 

13. The matters set out in Paragraphs 1 - 7, 8 (a) - (b) (i) - (ii) and 9 constitute misconduct and I or lack of competence.

 

14. By reason of your misconduct and I or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Application to Amend the Allegation

1. At the outset of the hearing Ms Manning-Rees, on behalf of the HCPC, made an application to make the following amendments:

• Paragraph 3(b) – delete the words, ‘…and/or did not record this…’
• Paragraph 6 - delete the words ‘…booked and…’
• Paragraph 7 delete the word ‘July’ and replace it with the word ‘May’.
• Paragraph 8 delete the word ‘July’ and replace it with the word ‘May’.
• Paragraph 11 – delete the reference to paragraph ‘8d’ and replace it with ‘10’.
• Paragraph 12 – delete the reference to paragraph ‘9’ and replace it with ‘11’.

2. Ms Manning-Rees submitted that the proposed amendments would assist both parties as they better particularised the HCPC’s case. Ms Sharma did not oppose the application.

3. The Panel noted that the Registrant had been put on notice of the proposed amendments in a letter dated 11 May 2017. The Panel was satisfied, having accepted the advice of the Legal Assessor, that the Allegation should be amended as requested as the proposed amendments:

• provided helpful clarification;
• avoided ambiguity;
• corrected typographical errors;
• did not alter the substance or meaning of the Allegation as originally drafted and did not widen the scope of the HCPC’s case.
• would cause no injustice to the Registrant as they were minor in nature and/or more accurately reflected the HCPC’s case.

Background

4. The Registrant was employed by Bromley Healthcare as a Band 8a podiatrist. During the period March 2015 to June 2015 a number of complaints were received from patients regarding the Registrant’s behaviour. The common theme of complaints was that the Registrant behaved in a rude manner in various ways as described by each complainant.

5. Due to the high number of complaints received in a short period of time, Bromley Healthcare conducted an internal investigation. During the course of the investigation members of staff raised concerns regarding the Registrant’s visibility and whereabouts during working hours. Further enquiries revealed that a large number of patient appointments which the Registrant had cancelled retrospectively, without a clear reason for doing so. The matter was subsequently referred to the HCPC.

Assessment of Witnesses

Witness TS – Investigating Officer

6. Witness TS was the former Operations Manager for Community Services and was tasked with conducting the internal investigation on behalf of Bromley Healthcare. The panel found that witness TS was objective and consistent in the giving of her evidence and referred back to the documentary evidence in providing her responses to questions. The Panel considered that she was a reliable witness. The Panel also considered that she gave her evidence in a fair and balanced manner. She did her best to assist the Panel and there was no reason to doubt that she was anything other than a credible and reliable witness.

Witness AD – Former Head of Podiatry

7. Witness AD was the Registrant’s former line manager. The Panel considered that witness AD gave his evidence in a fair and balanced manner. Witness AD’s independent recollection of some aspects of his interaction with the Registrant and the procedures at Bromley Healthcare at the relevant time was limited due to the passage of time. However, overall the Panel found Witness AD to be a credible and reliable witness.

Patient D

8. Patient D provided the Panel with a clear and consistent account of her first appointment with the Registrant. She had a very good recollection of the discussion that took place during that appointment and the Panel accepted that, on this issue, her evidence was credible and reliable. However, there were some aspects of Patient D’s evidence which were based on her perception and subjective opinion. Although the Panel accepted that Patient D’s opinion was based on an honestly held belief, it proceeded with caution in assessing the weight to be attached to this aspect of her evidence.

The Registrant

9. The Registrant chose to give evidence. The Panel noted that the Registrant has an unblemished record in terms of formal disciplinary action and has worked at a senior level for many years.

10. The Panel recognised that giving evidence is a stressful event and made appropriate allowances. However, there were aspects of the Registrant’s evidence which could not be adequately explained on the basis of stress alone. The Registrant frequently gave long rambling unfocussed answers and although he was clearly articulate, at times, the Panel was unable to understand his explanation for the retrospective cancellations, which gave the impression that he was being evasive. The Panel also took the view that the Registrant’s oral evidence was not as well-developed and insightful as his witness statement and reflective statement would suggest, despite the fact that these documents were signed only a few days before the hearing commenced. Furthermore, the Panel noted that the Registrant made a significant number of admissions at the outset of the hearing. However, in his written statement and oral evidence these admissions were less than fulsome. For example, the Panel took the view that the Registrant’s admissions with regards to the allegations that he was rude appeared to be qualified admissions based on the patients ‘perception’ or ‘misconstruing’ his intentions. These features undermined the Registrant’s overall reliability.

Decision on Facts

No Evidence Offered

11. Ms Manning-Rees, confirmed prior to closing the HCPC’s case that no evidence would be offered in relation to Paragraphs 3(a), 3(b) and 10. As a consequence paragraph 11 was amended by replacing the word ‘and’ with the word ‘is’ and the Panel did not go on to consider these paragraphs.

Panel’s Approach

12. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything and the individual particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

13. In reaching its decision the Panel took into account the oral evidence of the HCPC witnesses, the Registrant’s oral evidence, the written and documentary evidence (including the Bromley Healthcare’s internal investigation and the Registrant’s witness statement and reflective piece) as well as the oral submissions made on behalf of both parties.

14. The Panel accepted the advice from the Legal Assessor. The Panel noted that following the Supreme Court decision in Ivey v Genting Casinos [2017] UKSC 67 the test for dishonesty is an objective test only. The Panel first had to determine the Registrant’s actual knowledge or belief and then determine whether his act or omission was, on the balance of probabilities, dishonest by the ordinary standards of reasonable and honest people.

15. The Panel noted that the Registrant admitted paragraphs 1(a), 2(a), 2(b), 3(c), 4(a), 5(a), 6(a), 6(b), 7, 8 and 9 at the outset and took these admissions into account when determining the facts of the case. 

Decision

Paragraph 1(a) – Found Proved (in part)
‘On or around 13 April 2015, treated Patient A, and:
behaved in a rude and I or condescending and I or patronising manner towards Patient A;’

16. There was no dispute that the Registrant was employed by Bromley Healthcare as a Band 8a podiatrist and that he had an appointment with Patient A on or around 13 April 2015.

17. The Panel noted that Patient A had not provided a witness statement for the purposes of this hearing. The Panel accepted, based on a written statement from a legal assistant at Kingsley Napley Solicitors that a letter had been sent to Patient A by Bromley Healthcare on 13 April 2017 and in response she stated that she did not want to be interviewed as part of the HCPC investigation. However, the Panel was provided with a copy of the Datix form (internal feedback review form for recording complaints and concerns) relating to Patient A’s complaint. The Datix form refers to a telephone complaint made by Patient A on 13 April 2015 to Witness AD, in which she stated that she did not want to see the Registrant again as she found him to be ‘condescending’ and ‘patronising’. The Panel noted that she also stated that the Registrant probably did not appreciate that he was speaking to her in that manner.

18. The Panel accepted the evidence of Witness AD that he had agreed with Patient A that he would talk to the Registrant to make him understand that ‘the ‘way’ he says something is just as important as ‘what’ is being said.’ The Panel also accepted the evidence of Witness TS. According to her investigation report  the Registrant denied that he had spoken to Patient A in the manner described and stated that it was ‘ridiculous’. However, he admitted the allegation at the outset of the hearing.

19. The Panel concluded that despite Patient A’s non-participation in these proceedings there was credible and reliable evidence based on the contemporaneous Datix form, the evidence of Witness AD, the investigation report of Witness TS and the Registrant’s admission that the Registrant had been condescending and patronising.

20. Accordingly, paragraph 1(a) was found proved on the basis of his condescending and patronising behaviour towards Patient A. As Patient A did not allege that the Registrant was rude and as there was no opportunity to question her, the Panel found the allegation that the Registrant was ‘rude’ not proved.

Paragraphs 2(a) – Found Proved

‘On or around 10 April 2015, treated Patient B, and:
behaved in a rude and/or arrogant manner towards Patient B;’

21. There was no dispute that the Registrant treated Patient B on or around 10 April 2015 and that the patient had been booked in as a standby appointment.

22. The Panel noted that Patient B had not provided a witness statement for the purposes of this hearing. The Panel accepted, based on a witness statement from a legal assistant from Kingsley Napley Solicitors that on 2 May 2017 Bromley Healthcare received an email from Patient B apologising that due to illness he did not want to be interviewed by the solicitors.  However, the Panel was provided with a copy of the Datix form relating to Patient B’s complaint. The Datix form refers to a complaint made in person by Patient B on 1 May 2015, in which he stated that the Registrant had been both ‘rude and arrogant’.

23. The Panel accepted the evidence of Witness TS, who interviewed Patient B as part of her internal investigation. Witness TS stated that she was informed by Patient B that the Registrant was unprofessional, arrogant and acted as if he was not happy to see Patient B.  The Panel also noted that when the Registrant was interviewed by Witness TS he denied that he had been rude. However, he admitted the allegation at the outset of the hearing.

24. The Panel concluded that despite Patient B’s non-participation in these proceedings there was credible and reliable evidence based on the contemporaneous Datix form, the investigation report of Witness TS and the Registrant’s admission that the Registrant had been rude and arrogant.

25. Accordingly, paragraph 2(a) was found proved.

Paragraph 2(b) – Found Proved

‘stated to Patient B, 'you're on stand-by, I will see you when I'm ready', or words to that effect.’

26. The Panel accepted the evidence of Witness TS. In her witness statement she stated that when she interviewed Patient B she was informed that when he approached the Registrant, after he had been waiting for a long period, the Registrant told him, ‘you are on standby, I will see you when I am ready.’ The Panel also noted that when the Registrant was interviewed by Witness TS he appeared to deny that he had said these words. However, he admitted the allegation at the outset of the hearing.

27. Accordingly, paragraph 2(b) was found proved.

Paragraph 3(c) – Found Proved

‘On or around 28 May 2015, treated Patient C, and:
behaved in a rude and I or arrogant manner towards Patient C.’

28. There was no dispute that the Registrant treated Patient C on or around 28 May 2015.

29. The Panel noted that Patient C had not provided a signed witness statement for the purposes of this hearing. The Panel accepted, based on a witness statement from a legal assistant from Kingsley Napley Solicitors that on 28 April 2017 Patient C stated that he was willing to be interviewed as part of the HCPC investigation. The solicitors obtained a witness statement from Patient C over the telephone and a draft copy of the statement was sent to her on 17 May 2017. Despite attempts to contact Patient C by telephone, email and letter there was no response from Patient C regarding the draft statement. Witness TS was also unable to make contact with Patient C as part of her investigation. However, the Panel was provided with a linked Datix form relating to a separate complaint made by Patient C. The Datix form refers to a complaint made in person by Patient C on 10 June 2015, in which he stated that the Registrant had been ‘rude’.

30. The Panel accepted the evidence of Witness TS, who interviewed the Registrant as part of her internal investigation. The Panel noted that when the Registrant was asked about the allegation that he had been rude he did not appear to confirm or deny it. However, he admitted the allegation at the outset of the hearing.

31. The Panel concluded that despite Patient C’s non-participation in these proceedings there was credible and reliable evidence based on the contemporaneous Datix form, the investigation report of Witness TS and the Registrant’s admission that the Registrant had been rude and arrogant.

32. Accordingly, paragraph 3(c) was found proved.

Paragraph 4(a), 4(b), 4(c) & (d)  – Found Proved

a. ‘behaved in a rude and arrogant manner towards Patient D;’
b. ‘blamed Patient D for smoking;’
c. ‘blamed Patient D for not controlling her diabetes;’
d. ‘told Patient D off for not bringing her own dressings with her;’

33. There was no dispute that Patient D’s first appointment with the Registrant took place in or around October 2015.   Patient D stated in her written statement that the Registrant was rude and arrogant towards her. She informed the Panel that he stated that it was her fault that she had devolved a foot ulcer and this was related to her diabetes. She also described him saying that this was because she did not control her diabetes. Patient D also stated that the Registrant told her off for not bringing her own dressings. During her oral evidence, Patient D stated that the Registrant told her that if she controlled her diabetes she would not have the ulcer. She informed the Panel that the Registrant told her she should not be smoking but ‘not in a polite way; it was in a rude way. It was abrupt.’ She described the Registrant as stating, ‘You should…rather than ‘I would advise you to…’ With regards to the dressings she stated that the Registrant said words to the effect of ‘Why haven’t you brought your own dressings?’ and ‘Why do you expect us to supply them.’ Patient D also stated that the Registrant made reference to having to save the NHS money.

34. The Panel accepted the evidence of Patient D with regards to the Registrant’s tone and manner. The Panel also accepted Patient D’s assertion that she had felt belittled by the Registrant’s behaviour towards her. Patient D’s account was consistent with her initial oral complaint, her complaint in June 2015, her interview with Witness TS and with similar complaints that had been made about the Registrant’s lack of effective communication with patients.   When the Registrant was interviewed by Witness TS he denied the entire allegation and said it was totally untrue. However, he admitted the paragraph 4(a) (rude and arrogant) at the outset of the hearing.

35. Although the Registrant denied ‘blaming’ Patient D for smoking and not controlling her diabetes and for telling her off for not bringing her own dressings the Panel concluded that these were the very comments that contributed to Patient D finding him to be rude and arrogant. The Registrant accepted during his oral evidence that he had discussed smoking, diabetes and dressings with Patient D. He stated during cross examination that he had probably ‘overloaded the patient with too much information and come across as hostile’ and accepted that his communication with Patient D ‘deteriorated to the point where it came across as blaming’. The Panel concluded that it was not the information that was provided that was the problem; it was the manner in which it was provided. The Panel was satisfied that, irrespective of the Registrant’s intention, Patient D’s perception was that she was being blamed and ‘told off’ and that was not unreasonable given the manner with which he had spoken to her. Collectively, the Panel concluded that the Registrant’s tone, manner, ‘blaming’ and ‘telling off’ was rude and arrogant. 

36. Accordingly, paragraphs 4(a), 4(b), 4(c) and 4(d) were found proved.

Paragraph 4(e) – Found Not Proved

‘bandaged Patient D's foot too tightly.’

37. Patient D informed the Panel that the Registrant bound her foot too tightly during her appointment with him on 18 March 2015 and that it became very sore during the afternoon later that day. She stated in her witness statement that the next day she took the dressing off and discovered that her foot had become very red. During her oral evidence, Patient D accepted that she had not told the Registrant at the time that she thought that the bandaging was too tight. The Registrant denied bandaging Patient D’s foot too tightly.

38. The Panel accepted the evidence of Witness AD that bandaging sometimes has to be applied tightly so that it does not come off as that would expose the patient to a risk of infection. The Panel noted that Patient D’s perception was that the bandage was too tight and that at some point she had developed an infection. Although Patient D believed that the Registrant’s handling of her foot and bandaging caused her infection that was not alleged by the HCPC and the Root Cause Analysis Report, dated 22 October 2015, stated that it was unlikely to be the cause. Whatever, the cause of the infection, the Panel noted that Patient D’s foot was likely to become inflamed in response to any infection and although her foot was numb this tightness may have been identifiable by the patient.

39. Accordingly paragraph 4(e) was found not proved.

Paragraph 5(a) – Found Proved

‘behaved in a rude and arrogant manner towards Patient E;’

40. The Panel noted that Patient E had not provided a witness statement for the purposes of this hearing. The Panel accepted, based on a witness statement from a legal assistant from Kingsley Napley Solicitors that on 21 April 2017 a letter was sent to Patient E by Bromley Healthcare. The solicitors did not receive a response from Patient E. However, the Panel was provided with a Datix form relating to a complaint made in person by Patient E on 19 May 2015, in which he stated that the Registrant had been ‘rude’, ‘arrogant’ and ‘quite condescending’.

41. The Panel accepted the evidence of Witness TS, who interviewed Patient E as part of her internal investigation. Witness TS stated that she was informed by Patient E that the Registrant was ‘bumptious, uninterested and that there was no communication from him’.  The Panel also noted that when the Registrant was interviewed by Witness TS he did not appear to confirm or deny that he had been rude and arrogant. However, he admitted the allegation at the outset of the hearing.

42. The Panel concluded that despite Patient E’s non-participation in these proceedings there was credible and reliable evidence based on the contemporaneous Datix form, the investigation report of Witness TS and the Registrant’s admission that the Registrant had been rude and arrogant.

43. Accordingly, paragraph 5(a) was found proved.

Paragraph 5(b) – Found Not Proved
‘acted in a rough manner during treatment;’

44. The Panel noted that Patient E believed that the Registrant had been rough during her treatment. However, the Panel accepted the evidence of Witness AD and the Registrant that patients may experience discomfort despite the clinicians’ best efforts due to the nature their condition.

45. In the absence of Patient E the Panel was unable to ascertain the context of Patient E’s description and concluded that insufficient evidence had been adduced.

46. Accordingly, paragraph 5(b) was found not proved.

Paragraph 5(c) – Found Not Proved

‘did not dress Patient E's toes properly.’

47. The Panel noted that Patient E believed that the Registrant had not dressed her toes properly. The Datix form indicated that she was dissatisfied because there was ‘no dressing on the toe as it is usually done.’ The Panel noted that Witness AD stated that all members of staff should be applying dressing in the same way. However, in the absence of Patient E the Panel was unable to ascertain the precise nature of Patient E’s concern and whether it related to a personal preference or a departure from the standard procedure. In these circumstances the Panel concluded that insufficient evidence had been adduced.

48. Accordingly, paragraph 5(c) was found not proved.

Paragraph 6(a) & 6(b)  – Found Proved

‘Between March 2015 and July 2015, retrospectively cancelled approximately 57 domiciliary appointments with high-risk patients on the EMIS system, and you:
a. did not undertake and I or record the visits; and I or
b. did not record the reasons for cancellation; and I or

49. Witness TS, as part of her internal investigation, was provided with an audit of EMIS (Bromley Healthcare’s patient record system). A record was produced of all high risk domiciliary (house bound patients) appointments that were cancelled by the Registrant during the period 1 March 2015 – 31 July 2015. The Panel accepted that the record showed that 98 high risk domiciliary appointments were cancelled by the Registrant during this period and that 57 of these were cancelled retrospectively. The Registrant did not dispute this.

50. The Panel accepted that the Registrant did not undertake or record the visits as a consequence of the cancellation. The Panel also accepted the evidence of Witness TS that the Registrant did not provide an explanation for these cancellations. In her witness statement she informed the Panel that when an appointment is cancelled the user is prompted to record whether it was cancelled by the clinician or provider and the reasons for the cancellation. The Panel noted that the EMIS records show that the reason column was left blank. The Panel also took into account the Registrant’s admissions to paragraph 6(a) and 6(b).

51. Accordingly, paragraph 6(a) and 6(b) were found proved.

Paragraph 6(c)  – Found Not Proved

did not re-schedule appointments’

52. The Registrant denied the allegation that he had not re-scheduled appointments. He stated, during his oral evidence, that when he was able to have access to the EMIS system he was able to identify five patients that had been re-scheduled. The Panel noted that no evidence was produced by the HCPC to rebut this assertion.

53. Accordingly, paragraph 6(c) was found not proved.
Paragraph 7  – Found Proved

‘In the case of Patient G, the clinical record indicated that podiatry treatment was completed on 13 May 2015 and you booked appointments for 14 July 2015 and 16 July 2015 which were cancelled retrospectively on 15 July 2015 and 17 July 2015.’

54. The Panel accepted the evidence of witness TS based on her investigation report that two appointments were booked for Patient M on 14 July 2015 and 16 July 2015, which were cancelled retrospectively by the Registrant on 15 July 2015 and 17 July 2015 respectively. Furthermore, the Registrant admitted paragraph 7.

55. Accordingly, paragraph 7 was found proved.

Paragraph 8  – Found Proved

‘In the case of Patient M, you:
a. made an appointment for 13 May 2015 which was retrospectively cancelled on or around 21 May 20 15;
b. made a further appointment for 26 May 2015, and you:
i. did not record that the consultation had taken place on 26 May 2015;
ii. received an email from Patient M's daughter raising concerns about Patient M's dressing;
iii. retrospectively cancelled the appointment for 26 May 2015 on 27 May
2015, three hours after receiving the email referred to in paragraph 8 (b) (ii).’

56. The Panel accepted the evidence of witness TS based on her investigation report. Her report confirmed that a consultation was added to Patient M’s record by the Registrant which created a diary reminder that Patient M was to be seen for a follow up due on 22 April 2015. An appointment for 13 May 2015 was retrospectively cancelled by the Registrant on 21 May 2015 and a new appointment added for 26 May 2015. On 27 May 2015 the Registrant received an email notification that Patient M’s daughter had called concerned about her mother’s dressing. Three hours later the Registrant retrospectively cancelled the appointment for 26 May 2015 and created a new appointment for 29 May 2015. The Registrant admitted paragraphs 8(a) – (d) at the outset of the hearing.

57. Accordingly paragraphs 8(a), 8(b), 8(c) and 8(d) were found proved.

Paragraph 9  – Found Proved

‘Changed an appointment booked for 13 May 2015 to "seen and left" on or around 15 May 2015 and did not undertake and I or record a consultation until 18 May 2015.’

58. The Panel accepted the evidence of witness TS based on her investigation report. Her report confirmed that one particular patient was booked into the diary on 13 May 2015. This appointment slot was subsequently changed to ‘seen and left’. However, the patient did not have a consultation added to their record until 18 May 2015 indicating that that was when the patient was seen. The Registrant admitted paragraph 9 at the outset of the hearing.

59. Accordingly, paragraph 9 was found proved.
Paragraph 11 (Dishonesty in relation to Paragraph 8(b)(iii)  – Found Not Proved

60. The Panel noted that during her oral evidence Witness TS indicated that the Registrant’s behaviour demonstrated a lack of integrity as he appeared to be making appointments to appear busy on EMIS, but then cancelled numerous appointments retrospectively. However, the Panel noted that the Registrant was not accused of dishonestly creating ‘ghost’ appointments; he was accused of dishonestly cancelling a single appointment with Patient M retrospectively.

61. Ms Manning-Rees asked the Registrant during cross examination if he had, in effect, created a caseload to gain more administration time. However, in her closing submission she invited the Panel to conclude that the Registrant had made the retrospective cancellation to cover up the fact that he had not seen Patient M as regularly as she should.

62. The Panel focussed on the Allegation as drafted by the HCPC. The Panel concluded that the HCPC’s case in relation to dishonesty was unclear. The Panel noted that there is a difference between a lack of integrity and dishonesty and a difference between acts or omissions which are misleading, but not necessarily dishonest.  The Panel concluded that the HCPC’s case suggested that the Registrant’s actions were unusual and not best practice. However, there was insufficient evidence upon which the Panel could conclude that his actions were dishonest by the standards of reasonable and honest people.

63. Accordingly, paragraph 11 in relation to paragraph 8((b)(iii) was found not proved.

Decision on Grounds

Panel’s Approach

64. The Panel accepted the Legal Assessor’s advice.

65. The Panel noted that lack of competence connotes a standard of professional performance which is unacceptably low and has usually been demonstrated by reference to a fair sample of the Registrant’s work.

66. In considering the issue of misconduct, the Panel bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that:

“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 misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

67. The Panel took into account the oral submissions of Ms Manning-Rees, on behalf of the HCPC and those made by Ms Sharma, on behalf of the Registrant.

Panel’s decision

Lack of Competence

68. The Panel noted that the concerns raised with regards to the Registrant’s work related to no more than seven patients during a period of approximately eight months. In the context of a busy podiatry department, where the Registrant may have been treating up to 18 patients a day, the Panel concluded that this did not represent a fair sample upon which the Panel could make a judgment as to the Registrant’s overall competence. In any event the Panel was satisfied that the Registrant knew what was expected of him as a podiatrist and was capable of working to the required standard but on occasion did not do so.

69. The Panel concluded that the Registrant’s acts and omissions did not establish a lack of competence.

Misconduct

70. The Registrant failed to act in the best interest of patients and failed to communicate effectively with patients during a period of approximately eight months between October 2014 and May 2015 when he spoke to five patients in a rude manner. The Panel noted that most of the complaints occurred in April and May 2015. The Panel considered the HCPC Standards of Conduct, Performance and Ethics and was satisfied that Registrant’s conduct breached the following standards:

• 1 - You must act in the best interest of service users.
• 7 - You must communicate properly and effectively with…other practitioners.

71. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, the Registrant’s conduct and behaviour fell far below the standards expected of a registered practitioner. The Registrant, despite 24+ years of experience as a podiatrist, repeatedly failed to meet the standards expected of him. The Registrant’s behaviour cannot be described as a momentary failure or a temporary lapse of judgement, particularly as concerns about his manner and behaviour with patients were raised with him from 2011 onwards by the Registrant’s line manager. Although the Registrant was provided with support to address his communication issues in or around 2011, he went on to repeat these failings on numerous occasions. The Panel noted that the Registrant was experiencing personal difficulties around this time related to his partner’s health, however, it concluded that individually and collectively the Registrants rude, arrogant and condescending behaviour towards patients amounted to misconduct. The Panel also took the view that ‘blaming’ Patient D for smoking and for not managing her diabetes amounted to misconduct.
72. The Registrant also failed to keep accurate records. The Panel considered the HCPC Standards of Proficiency for Chiropodists/Podiatrists and was satisfied that Registrant’s conduct breached the following standards:

• 8.1 - be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users…
• 10.1 - be able to keep accurate, comprehensive and comprehensible records in accordance with applicable…protocols and guidelines.
• 10.2 - recognise the need to manage records and all other information in accordance with applicable legislation protocols and guidelines.

73. The numerous retrospective cancellations on EMIS between March 2015 and July 2015 undermined the accuracy and integrity of the patient’s records. In the Panel’s view his conduct and behaviour presented a risk of harm, due to delay, which may have been unnecessary and avoidable. The Panel concluded that these retrospective cancellations amounted to misconduct.

74. The Panel also took the view that the Registrant’s failure to record that a consultation took place on 26 May 2015 with Patient M amounted to misconduct.  The absence of a clinical record may have had an impact on Patient M’s ongoing care.

75. In addition to patients, the Registrant’s conduct had the potential to adversely affect colleagues within his team, the wider profession and the reputation of Bromley Healthcare. Confidence and trust amongst colleagues is extremely important; they should be able to expect that individuals within the team can be relied upon to work in accordance within established policies.

76. In relation to the failure to record the reasons for the cancellations of approximately 57 domiciliary appointments with high risk patients on the EMIS system, whilst not good practice, the Panel did not consider that the failure to record the reason was sufficiently serious to amount to misconduct. In relation to Patient G, as his treatment had concluded no patient safety issues arose and therefore although retrospective cancelling of the appointments was not good practice, the Panel concluded that this did not amount to misconduct. Having accepted the Registrant’s evidence that in relation to paragraph 9, he saw the patient on 15 May 2015, which was a Friday, but was unable to record the consultation until Monday 18 May 2015, the Panel also took the view that this did not amount to misconduct.

Decision on impairment 

Panel’s Approach

77. Having found misconduct the Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the HCPC Practice Note: “Finding that Fitness to Practise is Impaired” and accepted the advice of the Legal Assessor.

78. In determining current impairment the Panel had regard to the following aspects of the public interest:

• The ‘personal’ component: the current competence, behaviour etc. 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.

Panel’s Decision

79. The Panel took the view that its factual findings demonstrated that the Registrant displayed a persistent lack of judgment and disregarded the safety and wellbeing of patients by retrospectively cancelling appointments which meant that urgent cases could not be booked in which is likely to have caused delays in treatment.

80. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

81. The Panel recognised that demonstrating remediation in a case involving an attitudinal deficiency is difficult.  The Panel noted that the Registrant’s rude behaviour relates to a discrete set of circumstances, which may have the potential to be remediated, provided that there is evidence of sincere and meaningful reflection that demonstrates that the attitudinal issues are firmly in the past.

82. The Panel noted that the relevant events date back to 2015. Although the Registrant had reflected on his previous behaviour the Panel took the view that there was a disconnect between his written reflections and his oral evidence. The Registrant stated that he fully appreciated the gravity of his misconduct and that he would behave differently in the future. The Panel also noted that the Registrant stated that he had not meant to be rude to the patients and accepted that he should not have retrospectively cancelled appointments. However, the Panel took the view that the Registrant’s acknowledgement of his shortcomings lacked depth and sincerity. There was also only limited evidence of genuine remorse during his oral evidence.

83. The Panel noted that the Registrant had completed various communication and clinical record keeping courses. Although formal courses are a useful starting point the Panel took the view that it is the learning that has been achieved and the translation of that learning into development of the practitioners’ practice which is of most significance. The Panel did not form the view that the Registrant had taken the opportunity to use the learning to improve his communication and inform insight into which of his specific communication failings were the cause of patient concern. The Panel took the view that the Registrant’s insight remained restricted to the effects of his behaviour and not the behaviour itself. In the absence of a sufficient level of insight and remediation the Panel concluded that there is a real risk of repetition. The Panel was particularly concerned by the pattern of behaviour that persisted off and on for an extended period of time. As a consequence, the Panel determined that there is a current and ongoing risk of harm to patients.

84. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.

85. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour.

86. Members of the public would be extremely concerned to learn that a podiatrist had been rude, condescending and arrogant towards patients and acted in a way that had the potential to compromise the safety and well-being of patients. It is critically important that colleagues and patients can rely on the professionalism of podiatrists at all times.

87. A significant aspect of the public component is upholding proper standards of behaviour. The Registrant’s conduct fell far below the standard expected of a registered practitioner and the Panel takes the opportunity to declare that it is not acceptable for a podiatrist to put his own views concerns or personal feelings before patients. The Panel took the view that until the Registrant has fully remediated his wrongdoing, he poses a risk to patients. The Panel also concluded that the Registrant has also brought the profession into disrepute, breached a fundamental tenet of the profession by failing to act in the best interest of patients. There is a risk that all of these features are likely to be repeated in the future.

88. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.

89. The Panel concludes that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on sanction

Submissions

90. Ms Manning-Rees, on behalf of the HCPC, referred the Panel to the Indicative Sanctions Policy and reminded the Panel that its primary function is to protect the public and the wider public interest. She made no positive submission with regard to the sanction that should be imposed.

91. Ms Sharma, on behalf of the Registrant, submitted that the appropriate sanction in this case is a Conditions of Practice Order. She outlined the mitigating circumstances and invited the Panel to conclude that suitable conditions may include indirect supervision, an action plan, additional learning and regular meetings with a mentor or supervisor. 

Panel’s Approach

92. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC as its regulator and upholding proper standards of conduct and behaviour. 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 severity.

93. The Panel had regard to its findings in relation to misconduct and impaired fitness to practise. The Panel also took into account the Indicative Sanctions Policy (ISP) and the submissions made by both parties.

Panel’s Decision

94. In determining the appropriate sanction, if any, the Panel considered and balanced the mitigating and aggravating factors.

95. The Panel determined that the following mitigating factors apply to the Registrant:

• He has engaged with the regulatory process;
• He sourced and attended relevant courses on communication and record keeping;
• He has demonstrated some developing insight into his behaviour and the effect on patients;
• He has had an otherwise unblemished 24+ year career as a podiatrist with no previous adverse findings by a fitness to practise panel;
• He has provided positive references which attest to his character, professionalism and communication with patients within the last 2 years;
• There is no evidence of repetition.

96. The Panel determined that the following aggravating factors apply to the Registrant:

• The rude and poor communication with patients was repeated;
• His evidence demonstrated an equivocal acceptance of  wrongdoing;
• He, at times, minimised the significance of his actions;
• There was a potential risk of harm caused to patients as a consequence of his retrospective cancellation of appointments.

97. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct and in the absence of exceptional circumstances, to take no action on his registration would be wholly inappropriate. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

98. The Panel went on to consider a Caution Order. The Panel noted paragraph 28 of the ISP which states:

A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action.  A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate.  A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”

99. Despite the Registrant’s long and otherwise unblemished career, the Panel concluded that the Registrant’s rudeness to patient’s and the error of judgment he demonstrated in retrospectively cancelling appointments, could not be properly described as an isolated incident. It could also not be described as ‘out of character’. The Registrant was made aware by Bromley Healthcare that his communication with patients was a cause for concern from 2011 onwards. Although there were periods without complaint the concerns re-surfaced. Furthermore, in view of the Panel’s findings that the Registrant has demonstrated limited insight into his misconduct and whilst the risk of repetition remains, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.

100. The Panel went on to consider a Conditions of Practice Order. The Panel bore in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable.

101. The Panel was aware that Conditions of Practice Orders are not usually appropriate to address attitudinal failings. However, the Panel concluded that suitable conditions could be formulated which would address the Registrant’s misconduct, his limited insight and adequately meet the wider public interest.

102. The Panel noted that the Registrant’s inability or unwillingness to consistently maintain good communication skills with patients is an attitudinal failing. However, the Panel took the view that it is capable of correction and there was no evidence before the Panel that there are any underlying issues which would prevent the Registrant from addressing his behaviour. The Panel was encouraged by the Registrant’s willingness to source and attend appropriate courses related to communication and record keeping. However, the Panel took the view that he had focused on the effect of his behaviour rather than the underlying cause. The Panel concluded that the Registrant should be given the opportunity to carefully reflect on its findings and consider the causal factors in depth to ensure that there is no risk of repetition in the future.  Furthermore, the Panel noted that patients were put at risk of harm as a result of the retrospective cancellations.  A clinical decision had been made for a return period to address clinical need and risk and the cancellations and failure to communicate effectively with patients inherently involved a delay in assessing the patient’s needs. The Panel concluded that the Registrant’s disregard of the impact on patients is similarly based on an attitudinal failing. 

103. The Panel took the view that the Registrant is likely to comply with conditions aimed at addressing his failings and that patients would not be put at risk of harm as a consequence of conditional registration. Therefore, the Panel concluded that it would be possible to formulate appropriate conditions.

104. Prior to confirming its decision to impose a Conditions of Practice Order the Panel considered whether a Suspension Order should be imposed. The Panel concluded that a Suspension Order would be punitive, disproportionate and would deprive the public of the services of an otherwise competent podiatrist. The Panel also took the view that a Suspension Order would prevent the Registrant from improving his communication skills with patients within a clinical setting.

105. Therefore the Panel determined that the appropriate and proportionate order to impose is a Conditions of Practice Order. The Panel determined that the Order should be imposed for a period of 18 months. The Panel was satisfied that this period would be sufficient for the Registrant to demonstrate compliance and an appropriate level of insight into his failings. Shortly before expiry of the Order, the Conditions of Practice will be reviewed by a review panel.

Order

The Registrar is directed to annotate the Register to show that, for a period of 18 months, you, Mr Daniel Newman must comply with the following conditions of practice:

1. You must formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice:

i)   Accurate record keeping
ii)   Rudeness whilst communicating with patients.

2. Your Personal Development Plan must include a reflective practice profile detailing how you have supported patients to effectively self-manage their condition, act as equal partners in their care, whilst sustaining an effective patient/professional relationship.

3. You must provide a copy of your reflective practice profile to the HCPC at least 14 days prior to the review hearing.

4. You must promptly inform the HCPC if you cease to be employed by your current employer(s) or take up any other or further employment.

5. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer(s).

6. You must inform the following parties that your registration is subject to these conditions:

A. Any organisation or person employing or contracting with you to undertake professional work;

B. Any agency you are registered with or apply to be registered with (at the time of application); and

C. Any prospective employer (at the time of application).

Notes

No notes available

Hearing history

History of Hearings for Daniel Newman

Date Panel Hearing type Outcomes / Status
30/10/2017 Conduct and Competence Committee Final Hearing Conditions of Practice