Mr Craig Brodie

: Prosthetist / orthotist

: PO04356

Interim Order: Imposed on 09 Dec 2016

: Final Hearing

Date and Time of hearing:10:00 30/10/2017 End: 17:00 02/11/2017

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

: Conduct and Competence Committee
: Struck off

Allegation

Whilst registered as a Prosthetist / Orthotist:

1. Between July and October 2016 you breached professional boundaries in relation to Patient A, in that you:

a) Engaged in a sexual relationship with Patient A;

b) Attended Patient A’s home for non-work related reasons;

c) Sent correspondence to Patient A for non-work related reasons;

d) Obtained and/or used Patient A’s email address for non-work related reasons;

e) On around 3 October 2016 and/or on or around 21 October 2016, contacted Patient A despite instructions from your employer not to do so;

f) Disclosed inappropriate personal information to Patient A;

2. Between July and September 2016 you provided Patient A with a second prosthesis:

a) which you did not document on the electronic system; and/or

b) which was formed of parts from another patient’s prosthesis;

3. Your actions described at particulars 1(a) and/or 1(b) and/or 1(c) and/or 1(d) were sexually motivated;

4. Your actions described at particulars 1 to 3 constitute misconduct;

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

Finding

Preliminary matters
Service
1. The Panel noted that written notice of these proceedings was posted to the Registrant at his registered address by first class post on 19 July 2017. It was also emailed to him on the same date. The Panel is satisfied, by virtue of the contents of an email sent by the Registrant to the HCPC on 26 October 2017, that he is aware of today’s proceedings. The Panel found there had been good service.

Proceeding in absence
2. The Panel heard an application and submissions from Ms Shameli for the hearing to proceed in the absence of the Registrant. It heard and accepted the Legal Assessor’s advice and had regard to the HCPTS Practice Note on ‘Proceeding in the Absence of the Registrant’. The Panel was aware that the same email referred to above of 26 October 2017 contained the Registrant’s declaration “I shall not be attending”. This was consistent with his statement within an earlier email attachment of 4 January 2017 to the HCPC, in which he wrote “I shall not be taking any part in the proceedings in London”. The Panel was of the view that the Registrant had voluntarily absented himself. There has been no application to adjourn this case and the Panel concluded that it was unlikely that the Registrant would attend future hearings. It determined that it was in the interests of justice and in the interests of all parties to proceed in the absence of the Registrant. The Panel also took account of the fact that there were two witnesses present who were ready to give live evidence on behalf of the HCPC.

Proceeding in private
3. An application was made by Ms Shameli for those parts of the proceedings that referred to the health of Patient A and the Registrant to be heard in private. The Panel took particular note of the contents of the Registrant’s email of 26 October 2017, in which he detailed the health difficulties he was currently experiencing. The Panel recognised that it has a duty to weigh up the competing needs of the public in terms of open and transparent justice against the right of an individual to keep his private life protected particularly where it impacts on his health. The Panel also took account of the vulnerability and the health of Patient A. The Panel therefore concluded that it was in the interests of both the Registrant and Patient A for the whole hearing to be heard in private.

Background
4. The Registrant was employed by Opcare Limited, Exeter Mobility Centre, as a Prosthetist / Orthotist from July 2015 – 21 October 2016. As part of his job he had a contract with the Royal Devon and Exeter Foundation Trust (the Trust), the purpose of which was to provide orthotic services to patients of the Trust on two or three days each week, in addition to the prosthetics clinic that he ran for the rest of the week. This contract started on 19 September 2015.

5. In his role, the Registrant was responsible, together with other professionals within the interdisciplinary team, for assessing patients, providing treatment to them and ensuring that the prosthetics and orthotics issued were provided in a timely manner and were fitted and functioning properly.

6. Patient A had her left leg amputated on 29 January 2016. Prior to this procedure, she had one appointment at the Bristol Enablement Centre. However, she later felt that the Exeter Mobility Centre would better suit her needs. She therefore transferred to them.

7. Patient A had her first post amputation appointment at the Exeter Mobility Centre in March 2016. Initially, she saw another prosthetist, but the Registrant covered an appointment in this person’s absence. Thereafter the Registrant continued to treat Patient A.

8. During an appointment in June 2016, the Registrant asked Patient A for input about the type of socket system she would like to have made. A socket system is the structure that holds a prosthesis. After carrying out some research on the subject, Patient A, as the Registrant had suggested, sent him an email to a generic email address for Exeter Mobility Centre. This was on 17 June 2016.

9. Several days later the Registrant responded to this email from his personal email account. He subsequently provided Patient A with his personal telephone number. There were several email exchanges thereafter. A few days after this, the Registrant asked Patient A if she would like to chat on the phone. They did. One of the messages from the Registrant contained an attachment which Patient A said was a photograph of his “bottom front half”.

10. About two weeks after the email contact was made, Patient A met the Registrant for the first time outside working hours. During the course of one weekend in July 2016, he went to her home and they spent the day together cycling and having a meal. They then returned to her home and went out together for meal that evening, after which they returned to her home. The HCPC allege that the Registrant had already intimated that his plan was to stay the night and he had brought his overnight bag for this purpose. The HCPC also allege that it was on that evening that the Registrant started a sexual relationship with a vulnerable service user. They also had consensual sex on one other occasion.

11. During this relationship, the HCPC allege that the Registrant made inappropriate remarks about his work colleagues and conveyed to Patient A personal information about them. It is also alleged that he discussed confidential details of patients with Patient A.

12. On 16 September 2016, Patient A attended Exeter Mobility Centre for an appointment to adjust her prosthesis. During this appointment, she spoke about her relationship with the Registrant. This was reported to DB, an Operations Manager at Opcare Limited, who was subsequently appointed to investigate Patient A’s allegations. On 3 October 2016, the Registrant was suspended from work. On 4 October 2016, the Registrant was interviewed by DB. In that interview he accepted he had entered into a sexual relationship with Patient A.

13. In a letter from his employer dated 3 October 2016 the Registrant was advised that whilst suspended he must not communicate with any parties including patients unless authorised to do so. The HCPC allege that, he emailed Patient A on or around 3 October 2016 and again on 21 October 2016 when he informed her about the outcome of the disciplinary process.

14. DB’s investigation highlighted concerns about a prosthesis that the Registrant had provided to Patient A. The HCPC allege that he prescribed a second prosthesis to her that was made up of components from another patient’s prosthesis that was no longer required. A prosthesis is a class one medical device and, once it is assigned to a patient, neither it nor its parts can be used for another patient.

15. It is alleged that the Registrant did not document the provision of the second prosthesis on the electronic record keeping system.

Decision on facts
16. The HCPC called two live witnesses to give evidence. They were Patient A: the service user the Registrant is alleged to have had a sexual relationship with, and DB, the Operations Manager at Opcare Limited, who conducted the investigatory interview with the Registrant.

17. The Panel observed that Patient A was tearful, emotional and appeared vulnerable when giving her evidence. Although she was not always clear about some details, the Panel determined that she was a credible witness. The Panel noted no inconsistency of significance between Patient A’s oral evidence and the contents of her witness statement, signed on 13 September 2017.

18. Similarly, DB, Operations Manager for Opcare Limited, gave evidence that the Panel accepted. He spoke, amongst other matters, of the investigation he made into Patient A’s allegations and an interview he conducted with the Registrant on 4 October 2016. The Panel determined that DB was a credible witness.

19. In addition to the oral evidence of these witnesses, the HCPC produced a bundle of documents and exhibits.

20. The Registrant neither gave a witness statement nor provided oral evidence. He did, however, in his written response (dated 4 January 2017) to the Allegation posted to him on 30 November 2016 confirm that “allegations 1, 2, 4 and 5 are true”. He denied Particular 3, adding that their friendship was “not sexually motivated in the slightest”. Despite this, the Panel did not treat the admissions to the letter of 30 November 2016 as formal admissions to the Allegation, although it did regard them as relevant material in the case.

21. Looking at the Particulars one by one, the Panel has determined as follows:

Particular 1(a) – found proved
22. Patient A gave evidence indicating that she and the Registrant had a sexual relationship. This was confirmed by the Registrant during his investigatory interview with his employer on 4 October 2016. Additionally, in his observations of 4 January 2017, the Registrant said that this Particular was “true”. The Panel determined that entering such a relationship breached professional boundaries. Therefore, the Panel found this Particular proved.

Particular 1(b) – found proved
23. Patient A in her evidence stated that the Registrant attended her home on a Sunday in July 2016. She said that they spent the day together and then returned to her home in the evening. In his observations of 4 January 2017, the Registrant said that this Particular was “true”. The Panel determined that attending Patient A’s home for non-work related reasons breached professional boundaries. This Particular was found proved.

Particular 1(c) – found proved
24. The exhibits bundle in this case contained many emails sent by the Registrant to Patient A, the context of which bore no relationship to his work. Patient A described an attachment to an email sent by the Registrant to her which contained an inappropriate photograph of himself. She stated that the photograph showed the Registrant as naked from the waist down. The Registrant, in his 4 January 2017 document, accepted this Particular. The Panel concluded that sending correspondence to Patient A for non-work related reasons breached professional boundaries. The Panel found this Particular proved.

Particular 1(d) in relation to obtaining Patient A’s email address - found not proved
Particular 1(d) in relation to the use of Patient A’s email address - found proved

25. Both Patient A and the Registrant accept that he obtained Patient A’s email address. However, after the Registrant’s initial contact, some subsequent emails concerning legitimate communication with Patient A about her socket were sent by him. As such, the Panel was not persuaded that this breached professional boundaries and therefore this aspect of the Particular is not proved. As matters progressed, based on the evidence of Patient A and the relevant documentary exhibits, the Panel is satisfied that the Registrant used Patient A’s email address for reasons unconnected with work. Mentioned within the documentary evidence are details of the Registrant’s personal circumstances, his colleagues and reference was also made to developing a personal/sexual relationship. This was a breach of professional boundaries and the Panel found this aspect of the Particular proved.

Particular 1(e) in relation to 3 October 2016 – found proved
Particular 1(e) in relation to 21 October 2016 – not proved
26. In a letter from DB dated 3 October 2016, entitled “Suspension pending a disciplinary investigation”, the Registrant was told not to communicate with any of Opcare’s employees, industry partners, patients or any other parties unless authorised to do so. The Panel concluded that the Registrant did however make contact with Patient A by email twice, on 3 and 4 October 2016 and told her of his suspension from work. The Registrant accepted this, in his document of 4 January 2017, as being “true” and he had earlier stated during the course of the investigation that this “instruction went in one ear and out the other”. The Registrant made contact with Patient A on 21 October 2016 stating that he was no longer working at the Centre. As the Registrant’s disciplinary hearing was held on 19 October 2016, it is not clear to the Panel whether the Registrant was still under the obligation not to discuss the investigation.  In so far as it relates to the 3 October 2016, the Panel found this Particular proved.

Particular 1(f) – found proved
27. In the same document dated 4 January 2017 referred to above, the Registrant also accepted this Particular was “true”. This was confirmed by Patient A who told the Panel that the Registrant had disclosed to her inappropriate personal information about his colleagues at work. For example he told Patient A about one member of staff who has MS and gets very tired and forgetful. He also told Patient A about another member of staff who suffered from depression and took medication. The Panel concluded that disclosing inappropriate personal information about colleagues breached professional boundaries. The Panel found this Particular proved.

Particulars 2(a) and 2(b) – found proved
28. The Panel is satisfied that the Registrant did provide Patient A with a second prosthesis. The witness statement of DB states that the prosthesis was made up of components ordered for another patient’s prosthesis that were no longer required. DB added that there was no electronic record of this. The Registrant, in his disciplinary hearing interview, admitted that he did not record details of the second prosthesis on the electronic recording system. In addition, the Registrant, in his 4 January 2017 document admitted these Particulars. The Panel found Particulars 2(a) and 2(b) proved.

Particular 3 – found proved
29. This Particular was denied by the Registrant in his 4 January 2017 document. However, the Panel, on the balance of probabilities, found that this contention was not credible. Considering all of the evidence about the development of the relationship between the Registrant and his patient and his acceptance that it led to a sexual relationship, it is inconceivable in the view of the Panel that his actions as described within Particulars 1(a), 1(b), 1(c), 1(d) were anything other than sexually motivated. The very fact that sex took place twice with Patient A (1a), that the Registrant took his overnight bag to her home (1b), that he sent suggestive emails and an inappropriate photograph of himself to her (1c) and used her email address to convey messages anticipating “cycling, sun, sex, great food, sex, music… and sex” (1d) were incapable of showing anything other than sexual motivation. The Panel therefore finds this Particular proved.

Decision on grounds
30. Whether or not the facts found proved amount to misconduct is a matter for the professional judgement of the Panel.

31. The Panel has found that, for a period of about four months in 2016, the Registrant significantly breached professional boundaries in relation to Patient A. Although the sexual relationship they shared was consensual, there is no doubt, in the view of the Panel, that it was the Registrant who took the leading role. He obtained details of Patient A’s telephone number and email address and sent frequent emails to her with a number of personal messages. He visited her home and took advantage of her position as a vulnerable patient. He was in a position of trust which he abused. The Panel noted a comment made by Patient A at the end of her witness statement when she said, “to do what he  [the Registrant] did to another human being is very sad, but to do what he did to a patient at a time that the patient most needed rehabilitation was inexcusable”.

32. This behaviour alone is sufficient to amount to serious misconduct, but matters were exacerbated further by the Registrant’s actions when, despite instructions from his employer not to do so, he continued to maintain contact with Patient A after the investigation by the Trust began. He also disclosed confidential personal information to Patient A about his colleagues.

33. Additionally, the Registrant did not document prescribing a second prosthesis to Patient A that had been made up of components ordered for another patient. This action was not recorded as it should have been.

34. The actions of the Registrant are in clear breach of a number of the ‘Standards of conduct, performance and ethics’ of the HCPC (2016). In particular:
Standard 1.7 You must keep your relationships with service users and carers professional.
Standard 5.2 You must only disclose confidential information if:
– you have permission;
– the law allows this;
– it is in the service user’s best interests; or
–  it is in the public interest, such as if it is necessary to protect public safety or prevent harm to other people.
Standard 6.1 You must take all reasonable steps to reduce the risk of harm to service users
Standard 9.1 You must make sure that your conduct justifies the publics trust and confidence in you and your profession
Standard 10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

35. Accordingly, in the Panel’s judgement, what the Registrant did cannot be said to amount to anything other than serious misconduct.

Decision on impairment 
36. The Panel heard and accepted the advice of the Legal Assessor. It recognised that the assessment of the question of current impairment, is a matter for the professional judgement of the Panel. Ms Shameli,  submitted that the Registrant’s fitness to practise is currently impaired.

37. In the context of both the private and  public components, the Panel was addressed by Ms Shameli on the need to protect patients in circumstances such as those found proved and also the need to uphold public confidence in the profession and the regulatory process.

38. In the Registrant’s 4 January 2017 response to the Allegation, he did not contest the assertion that his fitness to practise is impaired.

39. The Panel noted from what the Registrant had written in his recently received email of 26 October 2017 that he has completely withdrawn from society over the last year or so.

40. Since the Registrant did not attend this hearing, the Panel had no current information upon which to assess his level of remorse or insight. Although the Registrant has, for the most part,  not  contested the Allegation in general terms, he has not shown insight or recognised the impact of his behaviour on a vulnerable service user. For instance, in his observations of 4 January 2017 he said as follows “I had reservations but allowed myself to get caught up in our friendship”. There was no recognition in his email of 4 January 2017 of the gravity of his conduct, which put the well being of a vulnerable patient at risk. He has shown very limited remorse other than, after the disciplinary hearing, he sent a message to Patient A apologising for the “extra trauma in your life”. His email of 4 January 2017 does not explain what he would do in the future if confronted with the same set of circumstances.

41. In his most recent communication with the HCPC dated 26 October 2017, he confines himself to speaking of how the whole episode has affected and will affect him. For instance, he writes “I am very worried about the public humiliation you are about to subject me to”. There is no reference in this document to his recognition of the pain his actions have caused Patient A. He also showed no awareness of how his behaviour undermined Patient A’s confidence in his profession and the knock on negative impact on her rehabilitation. All these factors led the Panel to conclude that there is a real risk of repetition and potential harm in the future. It concluded that the Registrant’s fitness to practise is impaired on personal grounds.

42. In terms of the pubic component, the Panel paid due regard to the HCPTS Practice Note on ‘Finding Fitness to Practice is Impaired’. The Panel is satisfied that, amongst other things, the Registrant breached one of the fundamental tenets of the profession – that of conducting an inappropriate relationship with a vulnerable patient – and is mindful of the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.

43. Accordingly, the Panel has determined that the Registrant’s fitness to practise is currently impaired on both the personal and public grounds.

Decision on sanction
44. In coming to its own independent decision on sanction, the Panel has paid careful regard to the submission of Ms Shameli that an appropriate sanction should be imposed in this case. It has taken into account the contents of the Indicative Sanctions Policy (ISP). It has also noted the advice of the Legal Assessor that it should apply the principle of proportionality in weighing the interests of the public against those of the Registrant. The public interest includes not only the protection of patients, but also the maintenance of public confidence in the profession, and the declaring and upholding of proper standards of conduct and behaviour.

45. The Panel took into account the following aggravating and mitigating factors:
• The mitigating factors are that the Registrant accepted most of the Allegation as true and showed some limited remorse towards Patient A.
• The several significant aggravating factors are that the Registrant abused the trust of a vulnerable patient, did not show insight, and did not take any steps to remediate his misconduct.

46. The Panel is satisfied that the Registrant’s actions would be regarded as deplorable by fellow practitioners and the public at large and, as such, needs to be marked with an appropriate and proportionate sanction.

47. Given the serious nature of the Registrant’s misconduct and its potential to put patients at risk and to undermine the reputation of the profession, the Panel is of the view that it would not be sufficient to conclude this case by taking no action or by referring it for mediation. Neither course would serve to protect patients or maintain the standing of, and public confidence in, the profession.

48.  The Panel then moved on to consider whether to conclude this case by the imposition of a Caution Order. The Panel do not consider this would adequately reflect the seriousness of the misconduct or provide sufficient protection for patients.

49. Next, the Panel considered whether the case could be concluded with a Conditions of Practice Order. In so doing, it had regard to the advice of the Legal Assessor that any conditions must be appropriate, measurable, workable and verifiable. The Panel’s judgement is that such a sanction would not meet the justice of this case. Apart from anything else, the only information it possesses from the Registrant is that he has, for the last ten months or so, been reclusive. His health is such, he says, that he has been obliged to seek the medical advice. In his 4 January 2017 email he indicated that he wished to leave the profession for health reasons. There is no indication in his most recent email dated 26 October 2017 of any plans to return to his profession. There are no conditions that can be formulated to address this situation.

50. In terms of a Suspension Order, the Panel did not feel confident that the Registrant is unlikely to repeat his behaviour. The Panel considered the seriousness of the misconduct found proved and was concerned about the Registrant’s denial that his behaviour towards Patient A was sexually motivated. The Panel is aware of paragraph 41 of the ISP that reads as follows:

If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option”.

Bearing these words in mind and the above stated view of the Panel that the Registrant is unable to resolve or remedy his failings, this sanction of imposing a Suspension Order is regarded as being inappropriate.

51. The Panel has determined that the only proportionate way to protect the public in this case is to make a Striking Off Order. It is also appropriate because the nature and gravity of the Allegation is such that any lesser sanction would lack deterrent effect and would undermine confidence in the profession. His misconduct had a profound impact upon a vulnerable patient. The Registrant has demonstrated that he is not fit to practise as a Prosthetist/Orthotist.

Order

That the Registrar is directed to strike the name of Mr Craig Brodie from the Register on the date this order comes into effect.

Notes

No notes available

Hearing history

History of Hearings for Mr Craig Brodie

Date Panel Hearing type Outcomes / Status
30/10/2017 Conduct and Competence Committee Final Hearing Struck off