2 Health Professions Council, Park House, Kennington Park Road, London, SE11 4BU. 4 Monday, 17th November

Transcription

1 1 2 Health Professions Council, Park House, Kennington Park Road, London, SE11 4BU. 4 Monday, 17th November IN THE MATTER OF MR. NIGEL LESLIE BURGESS 7 8 RECORD OF PROCEEDINGS of the CONDUCT & COMPETENCE PANEL 9 CLINICAL SCIENTISTS DISCIPLINARY PANEL MR. ROBERT CLEGG (In the Chair) DR. ROBERT CHIVERS 12 PROF. DON WATSON 13 IN ATTENDANCE MS. S. GOODRICH 14 (Legal Assessor) 15 REPRESENTING THE COUNCIL MR. MICHAEL CAPLAN QC 16 (of Messrs Kingsley Napley) 17 THE RESPONDENT did not appear and was not represented (Transcript of the Shorthand Notes of Marten Walsh Cherer Ltd. 21 Midway House, 27/29 Cursitor Street, London EC4A 2LT. Telephone No: Fax No: ) P R O C E E D I N G S

2 1 THE CHAIRMAN: Good morning. I do not think we need any 2 introductions. Our names are before you. I understand that 3 Mr. Burgess will not be attending. 4 MR. CAPLAN: Sir, that is the position. Good morning. I am 5 Michael Caplan. I appear on behalf of the Council this 6 morning. Mr. Burgess will not be attending. A letter was 7 received from his solicitors. Perhaps I can hand up a copy. 8 It is a letter dated 13th November (Document 9 distributed) and it is from Shulmans Solicitors who represent 10 Mr. Burgess. Perhaps I can just read the first paragraph: 11 "We write to confirm that our client will not be in 12 attendance at Monday's proceedings, nor does he intend 13 to be represented. However, we would draw the 14 following to the Committee's attention." 15 What I propose to do, sir, is draw those to your attention in 16 due course, after I have outlined the case briefly to you. 17 Perhaps I can indicate, having said that, that the 18 proper course would be to have the allegation formally read 19 publicly against Mr. Burgess. 20 THE LEGAL OFFICER: Mr. Burgess' fitness to practise as a 21 registered health professional is impaired by reason of 22 convictions for criminal offences, particulars of which are 23 as follows: 24 "At Leeds Crown Court on or before 7th January 2003 you 25 were convicted of seven counts of theft contrary to

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4 1 section 1 of the Theft Act 1968 and one count of 2 obtaining reduction of a liability by deception 3 contrary to section 2(1)(c) of the Theft Act 1968 and 4 you were sentenced to 200 hours Community Punishment 5 Order and ordered to pay 5, towards the costs 6 of the case." 7 Mr. Burgess is not here. Perhaps I could formally call 8 Mrs Barnes to deal with the registration of Mr. Burgess. 9 Before doing so, the Committee should have received a bundle 10 of documents which form the case. I do have one witness who 11 I will be calling, Mr. Grieveson. You have seen his 12 statement. He is present and I would ask that he remains in 13 the hearing so he hears how I present the case and he can 14 assist you further in due course. If I can formally call 15 Mrs Barnes. 16 MRS LORNA ANNE BARNES SWORN 17 EXAMINED BY MR. CAPLAN 18 Q. Mrs Barnes, your full name and position, please? 19 A. Lorna Anne Barnes and I am Director of Legal Services for the 20 HPC. 21 Q. Can I ask you about Mr. Nigel Leslie Burgess. Is he on the 22 register? 23 A. Yes, he is. 24 Q. What is his discipline? 25 A. He is an audiological scientist. 2

5 1 Q. When was he first registered? 2 A. He was first registered on 17th November Q. His address on the register, please? 4 A. 9 Simons Close, Glossop, Derbyshire, SK13 6NE. 5 Q. Has he been registered throughout since 17th November until today? 7 A. Yes, he has. 8 Q. I think you and your department called for a notice of 9 allegation to be served upon him? 10 A. We did. 11 Q. What date was that, please? 12 A. The notice of allegation was dated 9th July MR. CAPLAN: Thank you very much. Sir, that is the evidence I 14 call from Mrs Barnes. 15 (The witness withdrew) 16 Could I outline the case to the Committee and I do so 17 briefly because you have seen the statement. Can I start, 18 please, sir, by going to what is enclosure 3 of your bundle, 19 which is the certificate of conviction against 20 Mr. Nigel Burgess which confirms that on 22nd November at the Crown Court in Leeds he was tried and convicted upon 22 indictment of eight counts of theft. You will see that seven 23 counts of theft are formally mentioned and one of 24 evasion of liability by deception. On each of those counts 25 he was concurrently sentenced to a Community Punishment Order 3

6 1 for a total of 200 hours and that is signed by an officer of 2 the court dated 27th August Could I then go, sir, if I may, to the sentencing 4 remarks of the His Honour Judge MacGill at Leeds Crown Court 5 on 7th January (it is enclosure number 4) where he really 6 encapsulates in the sentencing remarks what happened in this 7 particular case. If I can go to the bottom of page 1, just 8 by G: 9 "Those charges of theft concern you dipping into the 10 hospital's account to pay for hearing aids, some of 11 them digital hearing aids, which had arisen. Although 12 they were very effective, they were expensive hearing 13 aids and it is quite clear that over a period of time, 14 as represented by those eight counts, between August and late 1998 you dipped into the account of the 16 hospital trust and have them pay for these particular 17 hearing aids. You were charging your patients 18 privately and, of course, you made an extra profit by 19 not having to pay for the goods in the first place." 20 That really, sir, and members of the Committee, in essence 21 sets out what the charge is all about. 22 If I can just go briefly to the statement of 23 the police officer, Sargeant John Hardwick, which is 24 enclosure 2, and go to the third page of that statement, to 25 give one example, and this is the example of Dr. Hurwitz, and 4

7 1 it is paragraph 9. 2 Dr. Hurwitz was referred to Nigel Burgess and saw him 3 at the private Nuffield Hospital. She tried a number of 4 hearing aids and eventually bought two of them at 1,900 on 5 9th September The documents show that Nigel Burgess 6 ordered those through the NHS trust, which paid for them, but 7 the 1,900 received from Dr. Hurwitz was credited into his 8 own personal bank account. This money was not returned to 9 the NHS trust. Dr. Hurwitz eventually found these hearing 10 aids unsuitable and returned them to Mr. Burgess. They have 11 never been found. Dr. Hurwitz then paid for another digital 12 hearing aid on 10th December, paying 1,500, which was then 13 credited to Nigel Burgess' own current account. 14 PC Worth, from whom this equipment had been ordered, 15 invoiced Nigel Burgess directly for 1, He wrote to 16 them on 31st January 1997 saying that the invoice should be 17 paid by the NHS trust. On 16th December 1996 Nigel Burgess 18 banked the cheque in the sum of 1,500 from Dr. Hurwitz. 19 Having not heard back from PC Worth, he faxed them a letter 20 on 9th April 1997 and also enclosed a copy of his letter 21 dated 31st January 1997 asking that they credit his account 22 with them at PC Worth for the sum of 1, that had been 23 charged to his account. This should be charged to the NHS 24 trust instead. PC Worth did as it had been requested and the 25 trust paid for the hearing aid and PC Worth credited Nigel 5

8 1 Burgess' account. That is one example there of what 2 occurred. 3 Sir, the total of the particular charges amounts to 4 approximately 7,500. As you have heard, in fairness to 5 Mr. Burgess, if you read through the transcript you will find 6 that it is accepted by the judge that that money has been 7 repaid by him. 8 What I would propose to do, before I place before you 9 documents from Mr. Burgess' solicitors, is call 10 Mr. Grieveson -- you have seen his statement. He is a 11 counter fraud specialist with the Counter Fraud Services of 12 the NHS -- to both formally outline what occurred and to give 13 the Committee any assistance that you require as to the 14 factual background of the case. If I may call 15 Mr. Grieveson, please. 16 MR. MICHAEL GERRARD GRIEVESON, SWORN 17 EXAMINED BY MR. CAPLAN 18 Q. Can I ask your full name, address and your position, please, 19 Mr. Grieveson? 20 A. Yes, it is Michael Gerrard Grieveson. I work from offices in 21 Newcastle. Third Floor, Scottish Life House, Jesmond, 22 Newcastle upon Tyne. I am a counter fraud specialist with 23 the NHS Counter Security Management Service, as we now are. 24 Q. I think you have kindly come from Newcastle to assist the 25 Committee this morning? 6

9 1 A. I have, yes. 2 Q. Although the statement the Committee has is unsigned, you 3 have signed the witness statement? 4 A. I have indeed. 5 Q. Could you just very briefly outline what occurred here? 6 A. Yes. From my investigation, which commenced in November , it was discovered that Mr. Burgess had been obtaining 8 digital hearing aids which he got the NHS trust to pay for 9 and then subsequently selling them on to his private 10 patients. We also found that he had not reimbursed the trust 11 for the price of the hearing aids he bought through the 12 trust. In interview he said that it had been an oversight on 13 his part, but unfortunately after further investigations it 14 was discovered there was more than one incident. Clearly, 15 one could have been an oversight, but there were a lot more. 16 We discovered that he had used the trust to obtain items 17 which he then sold to private patients and had no intention, 18 in my opinion, of paying the trust for. Subsequently, he was 19 taken to court and found guilty of the charges that were 20 brought. 21 Q. You carried out a very thorough investigation. The Committee 22 has seen your statement and the various invoices and, indeed, 23 the interview that took place. I think you were present in 24 court when he was convicted? 25 A. I was, yes. 7

10 1 Q. Were you also present when he was sentenced by the trial 2 judge? 3 A. Yes, I was present throughout the proceedings and at the 4 actual sentencing hearing. 5 MR. CAPLAN: Sir, I do not know whether you or the Committee have 6 any questions of Mr. Grieveson? I do not know whether he can 7 give you any assistance in this matter. 8 QUESTIONED BY THE COMMITTEE 9 THE CHAIRMAN: The question of repayment, in your statement, 10 Mr. Grieveson, I am not sure when this was, it is the last 11 page, you talk about a sum being repaid to the trust and 12 another repayment for which "We did not pursue him any 13 further in relation to this." The "we" being? 14 A. I was speaking on behalf of the trust there. What happens is 15 we undertake the investigation. The aspect of obtaining 16 monies back is left with the trust and the actual internal 17 audit decided that it was not worth pursuing him for the 18 difference because it would have cost too much money to take 19 him through the civil courts. He would not accept that he 20 still owed the difference and so it would have had to have 21 been civil proceedings, which they decided not to proceed 22 with. 23 Q. Perhaps you can clarify. In Mr. Caplan's introduction he 24 said that 7,500 was repaid to the trust? 25 A. I cannot pass any comment on the actual figures. At court, 8

11 1 yes, the judge did agree and we in turn agreed that the 2 amount had been settled in full. From recollection I cannot 3 really help you any further than that. 4 MR. CAPLAN: If I could assist the Committee. Could I ask the 5 Committee to look at enclosure number 4, the judge's remarks, 6 page 3. 7 THE CHAIRMAN: A figure of 12,000 rings a bell with me. 8 A. I think that was the amount he had actually sold them on to 9 his patients for. He had actually acquired 12,000 from his 10 private patients. 11 MR. CAPLAN: The judge in his closing remarks said: "You have 12 repaid before these proceedings commenced the monies that 13 were taken." If I may say this. In fairness to the 14 registrant here, one might suggest the Committee should 15 proceed on the basis of the judge's remarks there whatever 16 confusion there might be. 17 PROF. WATSON: We have no evidence from the trust? 18 MR. CAPLAN: Again, without confusing matters, it would seem in 19 fairness to Mr. Burgess that you ought not to go behind the 20 judge's remarks. You should proceed on that basis. I did 21 not mean to interrupt. I hope that is of assistance. 22 THE CHAIRMAN: Given the amount of information, and like the 23 judge, I must say, I was impressed with the detail of the 24 investigation which allowed the matter to proceed. I got a 25 little confused in respect of a couple of aspects. The 9

12 1 Romanian trip and the amount of equipment that had been taken 2 and that did not seem to have been resolved. 3 A. On that particular charge, I believe he was found not guilty. 4 There were other charges that he was found not guilty of. 5 Certainly, the matters were pursued. 6 Q. I could not conclude at the end of it just how much equipment 7 had been involved in that particular aspect? I am not sure 8 it is desperately important. 9 A. They were small items. They were items of tubing. Things 10 for testing people's hearing that he took out to Romania with 11 him. They were not expensive items. 12 DR. CHIVERS: In summary, all the other matters, apart from those 13 for which he was convicted, he was either not charged with 14 them or he was acquitted? 15 A. He was charged with them and he was acquitted. 16 PROF. WATSON: Could I just ask, Mr. Grieveson. You were present 17 in court, these private patients who were paying for these 18 hearing aids, it would appear from the transcript that some 19 times they were paying more than the actual cost price for 20 the hearing aid. Were they represented in court? What 21 happened to the aspect of his overcharging his patients? It 22 is not clear whether he was charging a fee or whether he was 23 charging his private patients which he was then charging to 24 the trust? 25 A. What was happening was he was seeing his patients privately, 10

13 1 and it was always a private arrangement. He was charging 2 them private prices. For example, Dr. Hurwitz, I believe, he 3 charged her 3,500 and that was exactly what she paid. She 4 expected to receive what she got. She was not aware of the 5 fact that he had put the cost of the items through the trust. 6 Q. The cost of the items were not 3,500? 7 A. The cost of the items were in actual fact less than half of 8 that. 9 THE CHAIRMAN: What prompted you initially to have concerns? 10 What was it that started the case off? 11 A. What started it off was to do with the Voluntary Service 12 Overseas. As you are probably aware, Mr. Burgess did go on a 13 voluntary basis to Romania to help test the hearing of deaf 14 children in Romania. Prior to that he ordered items through 15 PC Worth, which is the company we are talking about, to the 16 value of They obviously sent an invoice out for that to the 18 trust. He ordered those items through the trust and he then 19 charged the VSO 163 for those items and he received payment 20 for those items, paid into his bank account. Consequently, 21 PC Worth were not reimbursed for the cost. They then wrote 22 to the trust saying, "You have not paid this bill. If you do 23 not pay this bill, we are not going to supply you with any 24 further equipment." 25 At the time Mr. Burgess had ordered the items through 11

14 1 the trust, he was in charge of the department. Since then 2 another man has become head of the department. He was then 3 contacted by PC Worth asking why this bill had not been paid. 4 He was then concerned as to why they were getting these 5 threatening letters saying, "We will not supply any further 6 equipment unless you settle this account." He then sent 7 s to Mr. Burgess saying, "Why have you not settled this 8 account", and Mr. Burgess still did not pay. It was not 9 until the actual internal investigation commenced he then 10 paid the 163. If it had not been for that, I suspect we may 11 not have found out about the actual offences that he 12 committed. 13 It was basically down to the fact that he did not pay that he had already received payment for from the 15 Voluntary Service Overseas to pay to PC Worth. 16 As I say, the trust were extremely concerned that PC 17 Worth, who were a big supplier to the trust, and still are, 18 would not supply anything further because of his actions. 19 That has now been resolved. The payments have been paid and 20 Mr. Burgess has refunded the trust with PROF. WATSON: He offered to repay the monies. That offer came 22 during the hearing on 8th December, did it? 23 A. The first internal started in November and two weeks later 24 there was a second one on 9th December. He offered to repay 25 in between times. He came back with his union representative 12

15 1 and said, "I will pay the amounts owed and I will resign from 2 the trust." 3 Q. I am just trying to get the sequence of events. 4 THE LEGAL ASSESSOR: Can I just clarify that. That was before he 5 appeared in court? 6 A. Indeed. That was right at the very beginning. Why I 7 commenced my investigation. I was brought in to investigate 8 this in between the first hearing and the second hearing of 9 the internal inquiry. At that time, our organisation had 10 just been set up. I had been in post all of a month prior to 11 that. They then decided to refer it to me. 12 THE CHAIRMAN: Another area where I had a little bit of 13 difficulty was the change in the arrangements and effectively 14 he implied that he had applied to tender for this work in a 15 private capacity, so it was said, but he was only getting the 16 work because he had applied on trust notepaper. That is 17 exactly how it is and he never got any further than that? 18 A. Again, that was a charge he was found not guilty of. The 19 actual information seemed to suggest to me that he had, as he 20 described, two bites of the cherry. He wanted to apply in 21 his own private capacity and apply on behalf of the trust. 22 THE LEGAL ASSESSOR: Can I stop you there. These were matters 23 that were dealt with on indictment and he was found not 24 guilty. I really do not think the Committee should hear 25 anything further about that. 13

16 1 THE CHAIRMAN: I apologise for asking the question. We do not 2 know what he was indicted on, do we necessarily? We know 3 what he was found guilty of, but we do not know what he was 4 indicted on. 5 DR. CHIVERS: The fact that he was acquitted or not charged we 6 cannot hold that against him. 7 THE LEGAL ASSESSOR: The question was perfectly appropriate. I 8 was stopping the officer giving his personal opinion of 9 whether someone is guilty or innocent when in fact he had 10 been acquitted. An acquittal is an end of the matter. I 11 think the officer will probably accept that? 12 A. Yes. 13 THE CHAIRMAN: I was just trying to get my thoughts together 14 because clearly there is an implication there that has been 15 put in front of us. I did not know whether it was an issue on 16 which he had been indicted and acquitted. 17 It is a bit difficult because some of my thinking may 18 have come from reading the information, but we are not aware 19 of which parts or what the total charges were and those of 20 which he was acquitted. 21 THE LEGAL ASSESSOR: My advice to the Committee would be to 22 largely ignore all of the information except those matters 23 relating to the specific counts on the indictments. The 24 certificate of conviction sets out very clearly the 25 particular charges. Numbers 1 to 8 concern effectively the 14

17 1 hearing aids and my advice would be to ignore all other 2 matters. Obviously questions as to how it came about that 3 the matter was uncovered are, of course, wholly relevant, but 4 when, for example, you are looking at the impact on the 5 public or the National Health Service etc. to solely confine 6 them to the hearing aid aspects. 7 DR. CHIVERS: I do not know who I should ask this question in 8 terms of the chronology. When was he actually charged with 9 these offences? He was convicted in November 2002, but 10 somewhere I seem to have read that he was arrested in March , which cannot be right. Obviously, he resigned in 12 December MR. CAPLAN: I do not know whether it would assist if the 14 Committee were to proceed on the basis that the trial 15 actually commenced in November The judge makes 16 reference in his remarks to the length of those proceedings. 17 DR. CHIVERS: I was more interested in what happened before that 18 in relation to his registration because, if I am correct, I 19 think Mrs Barnes said that he was actually registered with 20 the Council in November 2000, which was almost a year after 21 he voluntarily resigned his full-time post. 22 MR. CAPLAN: Yes. That is not a bar to the Committee hearing 23 about the conduct. 24 DR. CHIVERS: I realise that. From the Council's point of view, 25 I am just trying to understand what he had been doing. What 15

18 1 I was particularly interested in was whether he knew of the 2 impending prosecution when he registered with the Council? 3 MR. CAPLAN: We have no information of that. I understand the 4 point. 5 PROF. WATSON: Could I ask Mrs Barnes. His registration, 6 following my colleagues point, was that at the time the 7 profession was incorporated into the HPC? 8 THE LEGAL OFFICER: Yes. 9 PROF. WATSON: He was not an individual. It was the profession 10 itself that registered with the HPC at that time? 11 THE LEGAL OFFICER: It would have been individual dates, but it 12 was at the time the audiological scientists came on board. 13 MR. CAPLAN: It would not have been open to him to have 14 registered at an earlier date. If it assists, because I know 15 a question was asked about the details of the particulars of 16 the offences. They are set out in the statement from the 17 police officer at page 7, paragraph THE CHAIRMAN: Sorry, what is the point, Mr. Caplan? 19 MR. CAPLAN: One of your colleagues mentioned about the detail. 20 You wondered where the actual detail was that gave rise to 21 the offences. Those details (what we call the indictment), 22 the particulars, are set out at the beginning of page 5 of 23 the statement. 24 PROF. WATSON: Mr. Caplan, I am sure you can help me. Could you 25 just explain to me as a lay person, the difference between 16

19 1 indictment 16(3) and the others, which are all theft except 2 for the evasion of liability by deception? I am trying to 3 get my mind around the difference there. 4 MR. CAPLAN: Theft I think you probably know and need no 5 assistance from me. 6 PROF. WATSON: I am trying to get the difference between theft 7 and deception. 8 MR. CAPLAN: What that in reality means is that there was an 9 evasion. He sought to avoid payment of a liability that 10 arose. I think that is the best way of putting it. There 11 was a liability, but he sought to avoid that by trying to get 12 PC Worth to do so instead. There was that deception which 13 operated under the Theft Act. 14 PROF. WATSON: He directly intervened with the suppliers by 15 saying that he was not liable whereas the other instances he 16 simply ordered them and distributed them to the patients. 17 MR. CAPLAN: If I can put it this way, I think this is fair. If 18 something is being paid for by the NHS trust then it belongs 19 to the NHS trust and he took those items. That gave rise to 20 the theft. It is the value of those items on each occasion. 21 PROF. WATSON: On the one occasion where he was charged by the 22 suppliers this is where he deceived them by saying "No, it 23 should not be me. It should in fact be the NHS trust." 24 MR. CAPLAN: He tried to evade the liability. Mr. Grieveson, 25 thank you very much for coming along to give evidence. 17

20 1 (The witness withdrew) 2 Very briefly. Obviously, the Committee have to 3 consider whether Mr. Burgess' fitness to practise is impaired 4 by reason of this conviction. The Council put the matter 5 very briefly to you. This occurred during the course of his 6 professional employment; that they amounted in reality to a 7 breach of trust. It was not just one occasion, but a number 8 of occasions, a deliberate act on his behalf, because of 9 that, of course, property was stolen from a NHS trust in 10 reality. 11 We would ask the Committee to consider, on the basis of 12 this conviction Mr. Burgess' fitness to practise is impaired 13 by reason of the convictions. Sir, that is the Council's 14 case. 15 Can I turn to Mr. Burgess. As you saw from the letter 16 I handed up at the very beginning, he would wish to draw the 17 Committee's attention to the initial representations that 18 were made to the Investigating Committee. The Committee may 19 be aware that matters such as this start off by going to the 20 Investigating Committee and the health professional is 21 invited to make representations to that Committee, that 22 Committee being charged with the concern as to whether the 23 matter goes forward to this Committee. 24 He did make representations and if I can hand up 25 copies, as requested by him. (Document distributed) The 18

21 1 letter goes on to say: 2 "The fact that all outstanding monies to the Trust were 3 paid by our client before he was summoned to Court in 4 relation to the allegations of fraud, save for one 5 outstanding item for which payment was offered at that 6 stage." 7 The solicitors ask that these matters be brought to your 8 attention. 9 The representations to the Investigating Committee were 10 under cover of a letter from Mr. Burgess' solicitors of 4th 11 June I do not know whether the Committee would want to 12 read them to yourselves. I do not think you need me to read 13 them out. 14 THE CHAIRMAN: Could we have a moment. (Pause) 15 MR. CAPLAN: Unless I can assist you further DR. CHIVERS: I have one question to which you may not know the 17 answer, Mr. Caplan. Do you happen to know whether 18 Mr. Burgess has been employed in the private sector since the 19 date of his retirement from the National Health Service? 20 MR. CAPLAN: I do not know is the answer. 21 THE LEGAL ASSESSOR: Sir, could I perhaps say for the record that 22 there are a number of observations made in relation to the 23 report of Mr. Grieveson, in particular referring to specific 24 matters which were either not the subject of any charges or 25 were not subject to charges in respect of which the defendant 19

22 1 was convicted. It reiterates the point I was making earlier 2 on when Mr. Grieveson raised the matter. 3 It is wholly right that the only matters this Committee 4 has regard to are the specific charges in relation to the 5 hearing aid matter, you know the length and breadth of that, 6 and disregard everything else. 7 THE CHAIRMAN: Thank you. We will retire. 8 (The Committee retired to consider its decision) 9 (After a short break) 10 D E C I S I O N 11 We have had some time. We find that the allegations 12 are well founded. Having heard the evidence that has been 13 presented this morning, having read the information that we 14 previously received and having taken account of the 15 representations of the registrant's solicitor, we find that 16 his fitness to practise is impaired by reason of his 17 conviction at Leeds Crown Court on 22nd November 2002 on 18 eight counts of dishonesty. 19 The offences were committed during his professional 20 practice and represented a serious breach of trust of his 21 employer. They occurred on more than one occasion and we 22 believe were deliberate acts. 23 In concluding we feel we must direct the Registrar to 24 strike his name from the register. He may not apply to be 25 restored to the register before the end of a period of five 20

23 1 years from the date the order takes effect. He should also 2 be advised of his right of appeal. 3 MR. CAPLAN: Mr. Chairman, members of the Committee, consequent 4 upon your finding and directions, the position as I 5 understand it under the order is that the health professional 6 does have a period of 28 days in which to appeal. As you 7 said, quite rightly, he should be informed of that right. 8 During the course of that period his name will remain 9 on the register. In the light of that. I would wish formally 10 on behalf of the Council to apply for an interim suspension 11 order under Article 31 of the order. 12 Sir, the position is that as a condition precedent to 13 such an application, the health professional has to be given 14 the opportunity of being heard. In other words, of being 15 told of the hearing. 16 We would say that he has been given ample opportunity 17 to attend here and be represented. As you are aware, he has 18 chosen not to be represented. It is Order 31 which deals 19 with interim orders. The reason for the application is he 20 would ordinarily remain on the register, able to practise for 21 the duration of the 28 days. If an appeal was lodged, until 22 that appeal was heard. In view of that, we would make the 23 application. 24 As I have mentioned to you, as a condition precedent to 25 the application, the health professional has to be given the 21

24 1 opportunity of being heard. We would say that he has had 2 that opportunity as such because he is aware of the 3 proceedings today. I concede immediately that we have not 4 said to him that we are going to apply for such an order. In 5 fact, it would be difficult for us to do so because we do not 6 know your ruling and we would not wish to pre-empt that. 7 It would seem to us that as he is aware of these 8 proceedings, could be present, has chosen not to be present, 9 it is open to us to make that application to you today. 10 THE CHAIRMAN: We would be happy to hear the application. 11 MR. CAPLAN: Can I just direct then that under Article 31 an 12 application can be made where it is necessary for the 13 protection of members of the public or otherwise in the 14 public interest or is in the interest of the person 15 concerned. 16 Our application is on the first two prongs, as it were, 17 of that order, that it is necessary for the protection of 18 members of the public or is otherwise in the public interest. 19 It is not an application, if I may say so, sir, which should 20 be lightly considered because it prevents someone practising. 21 Our application to you today is, of course, consequent 22 upon your decision not only to find that his fitness to 23 practise is impaired, but also to direct the Registrar to 24 strike his name off the register and to say, subject, of 25 course, to any appeal, that he should not apply for 22

25 1 restoration for at least five years. 2 On the basis of that, sir, we would ask the Committee 3 to consider an interim suspension order under Article 31. We 4 would say that it would be for the protection of members of 5 the public or is otherwise in the public interest. 6 Might I just say this additionally, that such an order 7 can last for up to 18 months. If the Committee were minded 8 to grant that order, might I ask the Committee to formally 9 grant for that period of 18 months, although if there is no 10 appeal it would fall away, of course, at the end of the four 11 week period, but we know not. There might be an appeal and 12 it will always be open, if there were an appeal or otherwise, 13 for the health professional to come back to this Committee, 14 or indeed elsewhere, to ask for it to be varied. Sir, I do 15 not know whether I can assist you further. 16 THE LEGAL ASSESSOR: Can I advise the Committee that there are a 17 number of legal requirements in relation to that which the 18 respondent needs to be informed of and it may be appropriate 19 to adjourn to consider those matters. 20 The Committee retired to consider its decision) 21 (After a short break) 22 INTERIM SUSPENSION ORDER DECISION 23 THE CHAIRMAN: We have decided to impose an interim suspension 24 order. We do so because we consider it necessary in the 25 public interest. The order will last for 18 months unless it 23

26 1 ceases to have effect and will be reviewed by this Committee. 2 The respondent should be advised that he has the right 3 (1) to apply to vary this order under the rules and (2) the 4 right to appeal. 5 MR. CAPLAN: Thank you very much, sir. 6 THE CHAIRMAN: Thank you all very much indeed