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England and Wales High Court (Administrative Court) Decisions |
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You are here: BAILII >> Databases >> England and Wales High Court (Administrative Court) Decisions >> Brennan v Health Professions Council [2011] EWHC 41 (Admin) (21 January 2011) URL: http://www.bailii.org/ew/cases/EWHC/Admin/2011/41.html Cite as: [2011] EWHC 41 (Admin), (2011) 119 BMLR 1 |
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QUEEN'S BENCH DIVISION
ADMINISTRATIVE COURT
Strand, London, WC2A 2LL |
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B e f o r e :
____________________
BRENNAN |
Appellant |
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- and - |
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HEALTH PROFESSIONS COUNCIL |
Defendant |
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Mr S Brassington (instructed by Bircham Dyson Bell Solicitors) for the Defendant
Hearing dates: 14th December 2010
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Crown Copyright ©
Mr Justice Ouseley :
The facts
"Mr Brennan has admitted that he had participated in other fabricated injury incidents on four earlier occasions. In evidence he informed the Panel that he had made purchases of fake blood on two occasions, the first being in about 2006. So far as the incident on 12 April 2009 is concerned, the Panel accepts that the incident was orchestrated by Dean Richards, the Harlequins Coach. However, Mr Brennan was a willing and active participant in the incident, and his participation was crucial as it was his ability to access the pitch that enabled the fake blood capsule to be passed to the player. Following the match Mr Brennan was a willing participant in the attempt to cover up the incident. He photographed the player's mouth after the match doctor had cut it. He actively participated in the club's attempts to deceive the match officials and representatives of Leinster Rugby Club. He also took an active role in the drafting of false witness statements to be used for the purposes of the disciplinary investigations instigated by the European Rugby Cup ("ERC"). When the ERC held a hearing, Mr Brennan, together with the others involved, attended and gave false evidence.
The Panel finds that there was premeditated behaviour over a number of years that was designed to deceive. It directly involved Mr Brennan's status as a Physiotherapist because of his ability to access players on the pitch during the match. Throughout the whole of the period over which injuries were faked he was employed as the Head Physiotherapist."
"…the Panel has been keenly aware that Mr Brennan's clinical ability is not in question. The evidence put before the Panel shows that his clinical skills are highly regarded by patients, peers and referring medical practitioners. However, the dishonesty already referred to continued over a number of years and ended not as a result of his own volition but only because of the player's subsequent admission. The Panel has no hesitation in find that Mr Brennan's professional reputation remains stained. The finding of impairment of fitness to practise is required to demonstrate to the public and other health professionals that behaviour of this nature simply cannot be countenanced."
"In deciding on the issue of sanction the Panel has paid close regard to the HPC's Indicative Sanctions Policy and has remembered that a sanction is not to be imposed to punish. A sanction is only to be imposed to the extent that it is required to protect the public and to maintain public confidence in the profession of Physiotherapy and in the HPC's regulatory function. To ensure that no more severe sanction is imposed than these proper aims demand the Panel has approached the available sanctions in an ascending order of gravity. In this case the whole sanction range up to and including striking-off is available.
It has already been said, but it should nevertheless be repeated, that the behaviour indulged in by Mr Brennan was dishonest, premeditated and continued over a considerable period of time. Whilst the panel acknowledges that the incident on 12 April 2009 was instigated by Mr Richards, by that date Mr Brennan had been offered the job with the England Team and could have resisted any pressure put on him, and that is even more the case in relation to the deliberately untruthful account subsequently given to the ERC. The conclusion of the Panel is that this is behaviour that is far too serious to result in the imposition of a caution order. The Panel considers that a condition of practice order is inappropriate, not least because it is not appropriate in a case where there is a finding of deliberate dishonesty and where the issue is not ignorance of appropriate standards, but a deliberate failure to comply with them. In circumstances where there is repeated and sophisticated deception the Panel does not consider that a suspension order is appropriate. This is because the past behaviour necessarily presents a risk of repetition in circumstances where Mr Brennan's personal interests conflict with his professional obligations. The Panel has therefore determined that a striking-off order is necessary. This is a decision that is arrived at not only by a process of elimination but also because it is the sanction the Panel considers to be necessary for the public and other professionals to understand that behaviour of this sort is unacceptable. For this reason the Panel is satisfied that striking-off is a proportionate response to the findings made."
The statutory and policy framework
"Fitness to practise proceedings are not intended to be punitive. The Panel's task is to determine whether, on the basis of the evidence before it, the registrant's fitness to practise is impaired. In effect, the task is to consider a registrant's past acts, determine whether the registrant's fitness to provide professional services is below accepted standards and to consider whether he or she may pose a risk to those who may need or use his or her service in the future. Where such a risk is identified, the Panel must then determine what degree of public protection is required.
If further action is to be taken then a range of sanctions is available which enables a Panel to take the most appropriate steps to protect the public.
The primary function of any sanction is to address public safety from the perspective of the risk which the registrant concerned may pose to those who use or need his or her services. However, in reaching their decisions, Panels must also give appropriate weight to the wider public interest, which includes:
- the deterrent effect to other registrants;
- the reputation of the profession concerned; and
- public confidence in the regulatory process."
" ? is it the least restrictive means of attaining that degree of public protection?
- is it proportionate in the strict sense, striking a proper balance between the protection of the public and the rights of the registrant?"
"In deciding what, if any, sanction is required, the issue which the Panel needs to determine is whether, based upon the available evidence, the registrant has genuinely recognised his or her failings and the steps needed to address them rather than focusing on the exact form in which this may be expressed."
"A caution order may be the appropriate sanction for slightly more serious cases, where the lapse is isolated or of a minor nature, there is a low risk of recurrence, the registrant has shown insight and taken remedial action."
"where a failure or deficiency is capable of being remedied and where the Panel is satisfied that allowing the registrant to remain in practise, albeit subject to conditions, poses no risk of harm or future harm."
"the imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in situations where problems cannot be overcome, such as serious overall failings, lack of insight, denial or matters involving dishonesty or the abuse of service users."
"Where the allegation before the Panel is based upon actions which constitute dishonesty, abuse or a breach of trust, conditions of practice are unlikely to be appropriate. However, if a Panel is considering imposing conditions in such a case, the Panel will need to consider carefully whether it is likely that the registrant can be trusted not to breach any conditions of practice which may be imposed."
"…or where the allegation is of a serious nature but there is a realistic prospect that repetition will not occur and, thus, that striking off is not merited…. Suspension is punitive in nature and this needs to be borne in mind. 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. However where the registrant has no psychological or other difficulties preventing him or her from understanding and seeking to remedy the failings then suspension may be appropriate.
Suspension for short periods of time (i.e. less than a year) is a punitive step which Panels generally should not use. In particular, Panels need to be aware that any period of suspension may have long term consequences for the registrant, including being dismissed from his or her current employment. However, short term suspension may be appropriate where any lesser sanction would be unlikely to provide adequate public protection, undermine public confidence or be unlikely to have a suitable deterrent effect upon the registrant in question and the profession at large."
"Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. An inability or unwillingness to resolve maters will suggest that a lower sanction may not be appropriate."
"It has frequently been observed that, where professional discipline is at stake, the relevant committee is not concerned exclusively, or even primarily, with the punishment of the practitioner concerned. Their Lordships refer, for instance, to the judgment of Sir Thomas Bingham MR in Bolton v Law Society [1994] I WLR 512, 517-519 where his Lordship set out the general approach that has to be adopted. In particular he pointed out that, since the professional body is not primarily concerned with matters of punishment, considerations which would normally weigh in mitigation of punishment has less effect on the exercise of this kind of jurisdiction. And he observed that it can never be an objection to an order for suspension that the practitioner may be unable to re establish his practice when the period had passed. That consequence may be deeply unfortunate for the individual concerned but it does not make the order for suspension wrong if it is otherwise right. Sir Thomas Bingham MR concluded, at page 519: "The reputation of the profession is more important than the fortunes of any individual member. Membership of a profession brings many benefits, but that is a part of the price.""
"… that the Professional Conduct Committee is the body which is best equipped to determine questions as to the sanction that should be imposed in the public interest for serious professional misconduct. This is because the assessment of the seriousness of the misconduct is essentially a matter for the committee in the light of its experience. It is the body, which is best qualified to judge what measures are required to maintain the standards and reputation of the profession."
Lord Millett in Ghosh v GMC [2001] 1 WLR 1915 at p.1923a observed:
"The board will afford an appropriate measure of respect to the judgment of the committee whether the practitioner's failings amount to serious professional misconduct and on the measures necessary to maintain professional standards and provide adequate protection to the public. But the board will not defer to the committee's judgment more than is warranted by the circumstances."
Reasons
Disproportion