Newsflash Professional Discipline 1st Nov 2019

Professional Standards Authority v HCPC and Wood [2019] EWHC 2819 (Admin) – Charging motivation and lies in investigation

The High Court has again highlighted the issue of undercharging.

Mr Wood was a paramedic called to attend Patient A, a highly vulnerable patient who suffered from a split personality disorder. Within 10-15 minutes of leaving the patient, Mr Wood began to text her. Over the course of the following month he continued to contact her. Some of those messages were sexually explicit and others attempted to arrange a meeting with the patient for sex. He also asked her to keep the messages a secret.

After another paramedic call out his misconduct was uncovered. During his disciplinary interview he mischaracterised his texts as supportive, driven by politeness and an intention of dodge the patient’s advances.

Before the HCPC Mr Wood admitted that he had acted in a sexually motivated away by:

  • Obtaining Person A’s telephone number,
  • Sending her sexual text messages,
  • Attempting to arrange and engage in sexual activity with Patient A.

The panel imposed a six month suspension period, and subsequently on review he was found not impaired.

On appeal, the PSA alleged a number of failings in the way the case was presented. In particular, the panel did not consider fully Mr Wood’s motivation and his knowledge of patient’s vulnerability. Patient A remembered she had given Mr Wood a document summarising this history when he first attended. Mr Wood denied this. The PSA argued the HCPC should have alleged he acted as he did because Patient A was vulnerable. Saini J agreed. As he noted, whether he knew of her vulnerability during and after this consultation when he engaged in this conduct was key.

In addition, the HCPC should also have pleaded that Mr Wood had lied in interview. Saini J noted:

In my judgment, the way in which a healthcare professional reacts to the discovery of their misconduct is an important part of an assessment of their attitude, their insight into the wrongdoing and effects on a victim, and the sanction necessary in the public interest. A person who gives a false or misleading account of actions and events when first confronted with allegations of wrongdoing is highly likely to be a person who does not understand the importance of his professional responsibilities. It is more than a matter of honesty and integrity. A lack of candour might, depending on the circumstances, call into the question the fitness of the individual to hold a position of trust and responsibility.”

In his view, Mr Wood provided a misleading account which essentially sought to blame the patient. That should form a separate allegation. The case was remitted back to a fresh panel to reconsider.

Commentary

Both these issues of motivation and candour continue to recur in the case law.

Charging motivation or knowledge is more nuanced than simply alleging dishonesty or sexual motivation in certain cases. This decision echoes the judgment in PSA v NMC and Macleod [2014] EWHC 4354 (Admin) where the motivation behind a nurse failing to report abuse by a colleague should have been pleaded. An intentional failure to act, in order to protect a colleague, is clearly more serious than a negligent omission. Similarly, pursuing a sexual relationship because the patient is vulnerable and less likely to resist is more serious than flirting with a patient in ignorance of the extent of her vulnerability.

The duty of candour has perhaps shone a spotlight on practitioner’s comments during disciplinary hearings. Lying about sexually exploiting a patient is inevitably serious. Perhaps of more significance, a clinical mistake may be relatively minor in itself but the response to those mistakes may be substantially more serious if the practitioner had minimised or misrepresented his conduct. This was the position in PSA v NMC and Dalton [2016] EWHC 1983 (Admin). Rather than simply looking on this lack of candour in an assessment of the practitioner’s insight, the court increasingly expects this matter to form a separate allegation.

Christopher Geering

 


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