Brennan v Health Professions Council

Stephen Brennan, the Appellant, a physiotherapist, appeals against the decision made on 14 September 2010 by the Competence and Conduct Committee of the Health Professions Council, which governs his profession, that he should be struck off its register. He does not appeal against the findings of misconduct, indeed he admitted almost all of the allegations save one which was found proved. Nor does he appeal against the conclusion that what he did impaired his fitness to practise as a physiotherapist.

The Appellant was the head physiotherapist at Harlequins RFC, a well known and at times successful rugby club. He had been employed there as a physiotherapist since 2001, and as head physiotherapist since 2004/5. Dean Richards became manager of Harlequins in 2005. The crucial events begin with a rugby match on 12 April 2009 between Harlequins RFC and Leinster in the Heineken Cup, organised by European Rugby Cup. At the time of this match, Mr Brennan had already obtained a new post as physiotherapist to the England rugby team.

Harlequins were losing as the match neared its end. Dean Richards wanted his principal fly half, Nick Evans, back on to the pitch, but he could only achieve this were Tom Williams, who had been substituted on for Nick Evans’ replacement, to suffer a blood injury. Dean Richards had warned Tom Williams that he would be coming off for a blood injury. At a stoppage, Mr Brennan went on to the pitch to give the blood capsule to Tom Williams, for him to use to fake an injury in the interests of the team. Tom Williams bit it after a passage of play when he might plausibly have suffered injury. Mr Brennan went on to the pitch to attend to him, and to take him to the referee for him to be inspected and then substituted off. Nick Evans came on, but missed with his crucial kick and the cheating Harlequins deservedly lost the match.

The fifth official, the match director of ERC and the Leinster doctor all thought that this might be a fake blood injury, and at Tom Williams’ insistence, the Club doctor, Dr Wendy Chapman cut the inside of his mouth. Mr Brennan took a photograph of the cut, knowing that it had not been caused during play.

The ERC decided to purse an investigation. Mr Brennan prepared, at Dean Richards’ instigation, his own false account of what happened, and, to ensure consistency among the liars, also produced false statements for Nick Evans and Tom Williams. The ERC held a disciplinary hearing in July 2009 at which it was alleged against Tom Williams, Stephen Brennan, Dr Chapman, Dean Richards and Harlequins RFC that they had conspired to fake the blood injury, and to cheat. Stephen Brennan, Tom Williams, Dean Richards and Dr Chapman all gave false evidence. Harlequins RFC and Tom Williams were found guilty of misconduct, the others were cleared. But Mr Williams decided that he had to tell the truth, did so, and the ERC appealed the findings of its Disciplinary Committee that Stephen Brennan, Dean Richards and Dr Chapman were not guilty.

Mr Brennan and the others challenged the jurisdiction of the Appeal Committee but when it rejected that challenge, Mr Brennan and Mr Richards accepted that they had lied hitherto, and Mr Brennan largely made a clean breast of it. I say largely because of an allegation which he disputed before the HPC Competence and Conduct Committee, but which it found proved. He also admitted that over the previous four years, since Dean Richards’ arrival at Harlequins and because of Mr Richards’ instructions, he had participated in fake blood injuries on four other occasions, though saying that these were for the purpose of helping a player to leave the field of play. The Appeal Committee of ERC banned Mr Brennan from participating in all rugby activities for 2 years. Dean Richards was similarly banned for 3 years, but appears to have a consultative role with Worcester RFC which apparently does not breach the ban. The case against Dr Chapman was dismissed on a mere technicality.

Dr Chapman was the subject of proceedings by the General Medical Council which issued a formal warning to her, which was to remain on her records for 5 years. She was found to have been dishonest, her conduct unacceptable, and never to be repeated. She had departed from good medical practice in a significant way, and had marred the reputation of the medical profession. But her fitness to practise was not impaired, since the GMC found that she was suffering from a major depressive disorder at the time, which affected her judgment and without which she would not have behaved as she did, and from which she was making an impressive recovery. So no sanction could have been imposed on her.

The Appellant admitted that he had participated in the fabrication of the blood injury, by purchasing fake blood capsules, keeping one in his bag during the match, going on to the pitch to give instructions to Tom Williams, contrary to ERC Rules, providing the fake blood capsule to Tom Williams, instructing him to take and use it for the benefit of the team, knowing that this was an attempt to cheat. He admitted or was found to have tried to conceal the fabricated injury by examining the player’s mouth and, seeing that there was no injury, (the allegation he disputed), taking the player to the referee with a view to his being substituted off the pitch for a false blood injury; he photographed the cut lip, prepared untruthful or inaccurate statements for two players to use for the ERC inquiry, further helped the club officials to cover-up the attempted cheating, lied to the ERC hearing, and had fabricated blood injuries on previous occasions. He admitted that this was dishonest, and constituted misconduct. The Conduct and Competence Committee found proved the allegation that his fitness to practise was impaired, which he disputed before it but does not now challenge further.

The Committee’s findings of fact are important for its conclusions on sanction:

“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.”

Relevant too is what the Committee said on impairment of fitness to practise in paragraph 7:

“…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.”

Article 29(5) of the Health Professions Order 2001, SI 254/2002, contains the sanctions available to the Committee: striking off the register, suspension of registration for up to one year, imposition of conditions of practice for up to 3 years, or a caution for between 1 and 5 years. I set out almost in full what the Committee said on sanction because the Appellant complains at the inadequacy of reasoning:

“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.”

Article 19(3) of the 2001 Order requires the Committee to proceed in accordance with Article 29(4) or (5) if it finds an allegation well-founded. Article 29(4) enables the Committee to take no further action if it finds an allegation well founded, but otherwise the imposition of one of the sanctions in Article 29(5) is required. At least in this case, the imposition of an Article 29(5) sanction was predicated not just on the allegations of misconduct and dishonesty being proved, but also on proof of the allegation that fitness to practise was impaired.

The imposition of sanctions is guided by the Health Professions Council’s Indicative Sanctions Policy to which the Committee’s Decision refers. The Appellant relies upon its contents for much of his argument that the Committee’s decision is wrong.

“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:

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the deterrent effect to other registrants;

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the reputation of the profession concerned; and

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public confidence in the regulatory process.”

I emphasise the latter because it makes it clear that a health professional’s fitness to practise may be impaired by matters other than clinical competence, and that the deterrence of wrongdoing as a health professional, the maintenance of the reputation of the profession and public confidence in the regulatory process can be of high importance.

The guidance on proportionality in paragraph 9 advises that the following questions should be asked among others:

“ ● 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?”

Paragraph 11 of the Policy states that the primary purpose of Fitness to Practise proceedings is to protect the public rather than to punish the practitioner. A key factor is the extent to which a registrant recognises his failings and is willing to address them. Insight, remorse, explanation and apology are relevant, though insight and remorse are different; paragraph 13. This continues:

“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.”

Paragraph 16 requires the Panel to explain carefully the reasons for sanctions. It then discusses the various sanctions. A Caution is appropriate for:

“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.”

That was not contended here. A Conditions of Practice Order will be most appropriate:

“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 orders last for a maximum of 3 years; a Committee should be satisfied that there is no general failure and that the matter is capable of correction by realistic conditions. They are seen as a very flexible means of disposing of cases; however:

“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.”

While compliance with conditions should be verifiable, it largely depends on trust, and therefore:

“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.”

A Suspension Order cannot exceed one year. It should be imposed where the lesser sanctions are insufficient or inappropriate to protect the public,

“…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.”

Finally, the Striking Off Order is considered in paragraph 38.

“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.”

I accept the submission from Mr Brassington for the HPC that paragraphs 4 and 31 of the Policy are not in conflict in what the Committee says over the punitive nature of sanctions. Sanctions are not intended to be punitive but they will often have that effect, which needs to be borne in mind when the Committee is deciding on sanction. The imposition of sanction is prospective, and hence looks to the future. I also accept the submission of Mr Harris for the Appellant that, although a Striking Off Order prohibits an application for restoration to the register within 5 years, it may well amount to a lifetime ban for Mr Brennan since he would have to find other work, would lose his skills and those he had would be out of date; and there is no certainty at all about restoration to the register after 5 years. I would not accept that it would inevitably amount to a lifetime ban.

The proper approach of the professional disciplinary body has been considered in many cases. In Gupta v General Medical Council [2002] 1 WLR 1699, Lord Rodger of Earlsferry said at paragraph 21:

“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.””

The Appellant appeals against the Committee’s decision under Article 38 of the Order, which permits the High Court to dismiss or allow the appeal or to substitute any decision which the Committee itself could have made. CPR 52.11 (1) (3) requires an appeal to be allowed when the decision appealed against is wrong. The other ground is not relied on.

The correct approach of this Court to an appeal against the decision of a professional disciplinary body has been considered in many cases. Lord Hope in Marinovitech v GMC, 24 June 2002, said:

“… 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.”

I start with Mr Harris’ lesser contention that the Decision failed to give adequate reasons for reaching the conclusion that striking off was the appropriate sanction, in view of the fact that the main aim of sanction was not punishment but public safety, and there was no dispute but that Mr Brennan was not a risk to public safety in the way he cared for his patients. It failed to deal with the numerous apologies made by Mr Brennan during the Committee hearing, and the evidence which he had given about his remorse, insight, rehabilitation and the steps which would prevent repetition. These qualities were recognised as relevant in the Indicative Sanctions Policy. They were also relevant to the proportionality of the sanction. It was not possible to tell from the Decision whether what Mr Brennan had had to say was accepted but regarded as insignificant or ineffective to safeguard the public or the other proper interests of sanctions, or whether it was rejected as insincere or untrue, or what qualifications the Committee had attached to it in deciding that Mr Brennan should be struck off and that that was not disproportionate. The Committee had gone to the ultimate sanction without explaining why in the light of the evidence, a lesser sanction, whether conditions of practice or suspension was not appropriate.

Mr Harris drew support from what Dobbs J said in R (Howlett) v Health Professions Council [2009] EWHC 36617 Admin about the need for the Committee to make plain why it reached the decision it had on the evidence before it. Mr Brassington countered that it did not require elaborate reasoning, and here the basis of the decision was plain.

Mr Brassington submitted that the Committee had accepted that Mr Brennan was a skilled practitioner, had carefully considered the sanctions policy at each step in its reasoning and had clearly come to the view that his repeated failures to measure up to the standards of honesty and integrity expected of a physiotherapist required him to be struck off. The public and professionals needed to understand that this sort of behaviour was unacceptable. He invited me to accept that the Committee had regarded what Mr Brennan had said and done at the hearing was too little and too late to have any significance for the outcome.

Mr Harris demonstrated by reference to the hearing transcripts that Mr Brennan, on 6 occasions when questioned during evidence, had said that he was sorry. Mr Brassington drew attention to the particular and contingent language Mr Brennan used on two occasions: thus, agreeing that a physiotherapist should show integrity and honesty: “If it’s judged I didn’t do that, I apologise to the HPC but certainly at no point was it my intention to damage the HPC”. Asked whether he was prepared to lie to protect the club, he said “If that is the way it seemed, I apologise”. Later, he said that he could only apologise about the fact that physiotherapy seemed to be connected with his name in the media. He had learned a lot, and would never want to be involved in anything like this ever again, and again he apologised to the HPC. He admitted that he had been dishonest, and said that he had done everything he possibly could to say sorry and to correct his ways. When questioned about what standards mattered to a sports physiotherapist, he said that every standard relating to his work matters, adding: “I apologise, in my sports world I was probably clouded as to how the world worked.” I accept that some but not all answers show an incomplete acceptance of the full extent of his wrongdoing.

Mr Harris pointed to how Mr Brennan had now demonstrated insight into what he had done wrong. He said that his experience of this had been “hell” but at least he would have more insight in the future as to how to act when put under pressure in his professional duties: “at the time, I didn’t appreciate the connection of giving a player a blood capsule on a rugby pitch to my profession as a whole.”

Mr Brassington poured some cold water on this, pointing out that during the ERC hearing at which Mr Brennan was lying about what happened, he used his role as a physiotherapist and its values to sustain the lie: he claimed that being a physiotherapist was more important to him than the game and that he would not risk his career, nor compromise his position. This however is exactly what he had done. I am aware of why Mr Brennan said to the Committee that he had said that to the ERC, and of the scope for debate about it. In my judgment, Mr Brennan has to take personal responsibility for what he said when he lied to the ERC.

Mr Brassington also pointed out that, at the Committee hearing, Mr Brennan had said that giving the blood capsule to Tom Williams “had nothing to do with physiotherapy as I like to practise. It was an act, stupid cheating, in a game of rugby and for me it has got nothing to do with physio whatsoever.” This, he said, showed that Mr Brennan lacked insight into how what he had done had involved abusing his trusted position as a physiotherapist, since it was only that role which enabled him to get on to the pitch to give instructions to the player and then to take him to the referee, having appeared to inspect his mouth. Mr Brennan’s evidence was also that he had never thought that the HPC would have been involved over this sort of cheating: “For me that was a separate little world”, which was language of the sort he used on a number of occasions to describe how he had felt about the relationship of what he did to his position as a physiotherapist. He had pigeonholed “these indiscretions into a back corner” of his mind. I return to that later.

Remorse, contended Mr Harris, was shown through walking away from the private practice he had established at the Harlequins ground, open to members of the public. He had had to walk away from it, because of the shame he felt and the hostility of fans towards him. He regretted not standing up to Dean Richards, for himself and the younger staff including physiotherapists, but he would not have had a job the next season, and he was told “that this was what one had to do”. This was dealing with the fact that there had been four earlier occasions at Harlequins when he had faked blood injuries. He assumed that it had happened before where Dean Richards worked. He described what happened at the match against Leinster as making a “five-second decision and for 6 months now I have regretted it”.

Mr Brassington is right to say that Mr Brennan had only confessed to his role once Tom Williams had decided to tell the truth, and the appeal hearing before the ERC could not be avoided. It was clearly not quite a five second decision to persist in lying about what happened until the challenge to the ERC Appeal Committee’s jurisdiction failed, and to help others to do so. Despite Mr Brennan’s asserted misgivings about what he was doing, he had remained not just silent but had continued deceitfully to cover up his role. His answers to the Committee are somewhat contradictory, p53, saying that the case “was closed” if Tom Williams had not come forward, and later, on repetition of the question, that he did not think that he would have got away with it. The Committee was entitled to reach the conclusion it did in paragraph 7 of the Decision.

Mr Harris submitted that the HPC had partly misunderstood the significance of the admission that Mr Brennan had been involved in blood cheating on 4 previous occasions: this should have been regarded as having a positive side as well, making a clean breast of past errors rather than as simply evidence of propensity to wrong doing. Mr Brassington submitted that it showed no positive side: Mr Brennan had only admitted to this when he had had to explain how it was that he had, and Dean Richards knew that he had, a blood capsule ready to hand if Dean Richards decided that the tactical situation required it for a substitution.

Mr Brennan was trying to rehabilitate himself by giving lectures, based on his experiences, of how professional ethics related to the pressures on sports physiotherapists, whether cheating opponents or passing as fit players who were not fit. By the time of the Committee hearing he had only given one such talk, to the employees of his company, but was offering to give more, targeting sports physiotherapists at university and in practice.

Mr Brassington did not object to my receiving evidence not before the Committee about the number of lectures Mr Brennan had subsequently given, and the positive reaction to them. I also accepted without objection an open letter he had written to the Chartered Society of Physiotherapists in December 2010 recognising his dishonesty and apologising for it, for letting down himself and the profession. The letter used language similar to that which I have quoted above from Mr Brennan’s evidence to the Committee, saying cheating had nothing to do with physiotherapy. I appreciate that that language can be construed as saying that cheating at sport does not affect one’s role as physiotherapist, drawing a misconceived distinction between cheating in sport by a physiotherapist, and practising physiotherapy. Mr Brassington submitted that that is exactly what it did mean and that it showed a disturbing lack of insight into what Mr Brennan had done wrong since he had abused his position as the team physiotherapist to assist the cheating. I do not so read the letter or the evidence: it seems clear to me that Mr Brennan, perhaps ineptly, was saying that cheating for the team was not something which a physiotherapist should do; it was not a permissible part of being a physiotherapist. I see that as contrasting with the attitude he admitted to when he was using blood capsules to fake blood injuries, that that was something apart from the obligations of a physiotherapist. I would be astonished if his stance before the Committee, with whatever degree of sincerity, was that cheating as a physiotherapist was not something with which the Committee should be concerning itself.

Mr Harris relied on all this not just as evidence that he was remorseful, and wanting to be clear to others about what he had done wrong so that others would learn from his mistakes, as he told the HPC; he also relied on it to show that there was no real prospect of repetition. He never wanted to get involved in such a horrible situation again.

The Committee also had evidence from Mr Cameron Steele, who had previously been head physiotherapist at Harlequins, and was now the senior Irish rugby teams’ physiotherapist. The events of 2009 had not altered his high regard for Mr Brennan. There was an “institutionalised win at all costs mentality” in many rugby management teams, which was very difficult to understand for someone who had not worked in professional sport. He thought that it was Dean Richards, who as Head Coach could dictate everything that happened, and senior Harlequins’ management, who had brought the club and the sport into disrepute. He quoted from a number of autobiographies by players which showed that the use of blood capsules to achieve substitutions was not uncommon in a number of Premiership clubs, as were other faked injuries. There was a recognised ethical dilemma about medical practice in professional sport where care was for the player in the context of a team trying to win. The Rules of rugby needed changing to deal with blood substitutions, which were known to be an area of cheating. There would have been great relief among many medical practitioners that the issue had been forced into the open, and many would have been relieved that it was not they who were caught. Harlequins now had a policy of medical staff reporting to management at board level rather than to the Director of Rugby, and had a whistleblowing policy, which Mr Steele hoped other clubs would follow.

Mr Harris criticised the Committee’s conclusion that Mr Brennan’s behaviour “necessarily” represented a risk of repetition where his personal interests conflicted with his professional obligations. Past behaviour did not necessarily mean that it would be repeated. There was plenty of evidence from Mr Brennan, which if accepted went to the unlikelihood of repetition, which the Committee had ignored. The I S Policy, paragraph 29, recognised that there might be a low risk of repetition which did not prevent a Suspension Order being imposed. Besides, Mr Brennan’s personal interests had not been at stake; he already had accepted the job with the England team by April 2009, and had been caught up in the team’s ethos of winning, even if it involved cheating. His two year ban from rugby, and what he had learned the hard way would prevent a realistic prospect of repetition.

Mr Brassington contested that interpretation of the evidence. Mr Brennan had admitted, in the context of answering what would have happened on the four earlier occasions when he used blood capsules to fake blood injuries if he had refused to go along with Dean Richards’ requirements, that he would not have had his contract renewed at Harlequins. He had continued to act in that way to keep his job, which he was very lucky to have, since they were hard to come by. This was also his explanation for not standing up to Dean Richards on behalf of junior staff, including junior physiotherapists. He admitted that he had put keeping his job with England ahead of honesty about what he had done, and he had done what he had to do to keep that appointment.

In considering the proportionality of the sanction, the Committee had evidence of what had happened to his professional life already: the two year ban from rugby, the loss of the England physiotherapist job with all its opportunities, the closing of his private clinic, and the loss of 75% of his income. Media attention had disrupted family and friends; and on a more personal note I was told that the sanction of strike off had meant that he and his wife had put off having a family because of the uncertainty as to how he could earn a living. In the part of the Decision dealing with sanction, the Committee had not mentioned the fact that there was no dispute about his professional skill, and the way he cared for those he treated.

All this was emphasised in submissions to the Committee on behalf of Mr Brennan.

I accept Mr Harris’ submission that the Committee has not dealt adequately with the case for Mr Brennan as to why he should not be struck off. Its reasoning is not legally adequate; it does not enable the informed reader to know what view it took of the important planks in Mr Brennan’s case. I do not know whether it accepted his remorse and apologies, accepted that he now truly saw the error of his ways, that is to say had insight into what he had done wrong, and accepted that he was trying to make good the harm he had done to the standing or image of the profession, or whether they thought that he was insincere, or that this would all be ineffective, without striking off, to restore the harm done or to prevent repetition, despite its sincerity. And if the latter, I do not know why it took that view. I accept that it thought that there was a risk of repetition, but whether that was merely the degree of risk that would be present in any case of past misconduct, or whether there was something more to it, I do not know. I do not know why it was thought proportionate to impose the heaviest, and in reality the most punitive sanction, when punishment was not the objective of sanction, and the primary objective of sanctions, the protection of the public, was not at issue.

I accept that the Committee went through the various sanctions, noting the comments in the Policy about them. I accept that the general language of the various sanctions puts this case in the area in which strike off had to be considered. But the factors which the submissions for Mr Brennan addressed are also very relevant to those sanctions, and to how far up the scale he should now be seen. Sanction is not punishment for past misconduct but future action in the interest of public safety and the other proper objectives to which I have referred. The sanctions cannot be properly addressed without consideration of the factors to which Mr Brennan’s evidence was addressed.

Where the purpose of sanction is to deal with issues other than the primary one of maintaining public safety, and is instead to provide deterrence to others, to maintain confidence in the profession’s reputation and standards and in its regulatory process, the reasoning is particularly important in showing that the sanction is proportionate to the misconduct and for the individual. This important issue is dealt with by the mere statement of a conclusion. What was required was consideration of how the individual had responded, the sincerity and effectiveness of that response, the reality of repetition in view of his insight, if accepted, into how the practice of the profession related to his obligations to his employer in professional sport, the punishment inflicted by the sport’s regulatory body, and the effect which various sanctions would have on the legitimate objectives of sanction for unfitness to practice. That did not occur. I was troubled that the reasoning included the comment that the sanction had been arrived at in part by the process of elimination given the weight that that puts on the starting point in the chain of reasoning. That reasoning, though not illegitimate, does require a very clear examination of whether the end result is proportionate, or whether the result would have been different if strike off had been considered first. This is especially important since there is no sanction available between a one year suspension and strike off. Strike off should be seen as ending the professional livelihood of the registrant as a physiotherapist, in this case, the only profession for which he is trained, and in which he has worked for many years. That does call for careful consideration of the evidence and reasoning, in what was an unusual case.

The sanction was required, according to the Committee, so that the public and profession should understand that such conduct was unacceptable; but that was at least one expressed purpose of the finding of serious misconduct. This finding pronounced how physiotherapists should not behave, if they had hitherto drawn a distinction between using their position to help cheat on behalf of their team, and the practice of physiotherapy. There was no reasoning to suggest that strike off was the only sanction which would deter other physiotherapists from such conduct in the future; or why a year’s suspension would not suffice for the restoration of public confidence, in view of the losses which Mr Brennan had suffered and would suffer, and in view of what happened to the others.

However distinguishable in the detail Dr Chapman’s position might be, the public perception correctly would be that she had not been sanctioned at all, despite her unprofessional act in cutting a patient and then her dishonesty in lying about it. I am not clear as to whether her depression was thought to have affected her ability to tell truth from lies, or to reach a judgment that she should not lie, or whether she realised that she was too ill to practise and nonetheless still practised medicine or whether she was unaware that anything was amiss with her health when she cut Mr Williams and then lied to the ERC.

Mr Brassington made some telling points about the evidence given by Mr Brennan, but I do not know if they were the points which weighed with the Committee; I do not know if it accepted what Mr Brennan had to say but thought that it was all too little, too late. Counsel’s insights cannot stand in the place of adequate reasoning by the decision maker dealing with the principal points at issue.

I accept that the Committee were aware that there was no risk to patient safety from practise by Mr Brennan, since it accepted as much in the section of its Decision dealing with fitness to practise. But the starting point and the fundamental factor for sanction for unfitness to practise is public safety, and it is in that connection that the Committee’s recognition that there was no risk to public safety, at least none which the Committee identified, should have been to the fore in its analysis of sanction. There was no dispute but that Mr Brennan was an excellent physiotherapist. The misconduct had not occurred in the treatment of a patient. The dishonesty was not towards a patient, nor against a patient’s interests. There was no deception of a colleague, nor of his employer, nor of the NHS or other body to whom he looked for payment for his services.

Mr Brennan’s dishonesty occurred in unusual circumstances since patients were not harmed, and what was done was done at the behest of a dishonest coach on behalf of their joint employer. Cheating at professional sport, abusing one’s position as a physiotherapist to cheat and then lying to the sport’s disciplinary body is serious misconduct, but the sanction here required a bespoke consideration of how the general words of the sanctions policy, which cover all situations, should be applied to this particular and unusual case.

Although what he did involved a practice of helping Harlequins to cheat through his position as the physiotherapist, and prolonged dishonesty in the subsequent investigation, which deserved punishment, that was not the task of the Committee when deciding on sanction. The sanction had to meet the unfitness to practise. It therefore followed that the Committee had to consider what interest was being served by sanction, given that it was not the principal aim of protecting patients directly from the actions of an incompetent or dishonest physiotherapist. It had to be deterrence or the reputation of the profession, or confidence in the regulatory process or all three. The reasoning had to demonstrate why those interests required the sanction imposed. The reasoning on sanction does not address that issue.

The punishment for cheating in sport and lying about it was for the sport’s regulatory body. What was for the HPC was the relationship between cheating in sport and lying about it, and his position as a physiotherapist, notably his abuse of that position to enable the cheating to take place, and his reliance on his professional position to assure the first ERC hearing that as a physiotherapist he would not lie. This relationship required careful attention if sanction was not just to become a further punishment; and the Committee did not address this issue in its expressed reasoning.

I have accordingly come to the conclusion that the Committee’s decision cannot stand and should be quashed. The reasoning is legally inadequate, failing to deal with the issues properly raised for its consideration by Mr Brennan.

Mr Harris submits that I should now decide on the appropriate sanction for myself, as undoubtedly I have the power to do. This would save time and expense. I had no reason not to accept the genuineness of the evidence of Mr Brennan. He contends that strike off could not be proportionate, however reasoned, and did not put forward any conditions of practice which would cover the unfitness to practise which had been found. Neither he nor Mr Brassington thought that conditions which prevented practise in sports medicine or for a team were appropriate. I do not think that conditions which required him not to cheat, or which required him to give lectures would deal with the cause of the unfitness. It cannot be sensibly contended, nor was it, that Mr Brennan’s abuse of his professional position and dishonesty afterwards did not merit sanction for purposes other than the direct one of public safety. In reality, Mr Harris invites me to impose a period of suspension.

Mr Brassington submitted that, although the Committee were best placed to deal with sanction, I should deal with sanction myself only if I regarded all sanctions as open to me. But if I thought that any sanction, especially striking off were disproportionate, I should remit the matter to the Committee.

I take the view that if I am satisfied that a particular sanction, here striking off, is disproportionate, it would be disproportionate however reasoned after remittal, and my remittal would have to include a direction not to impose it. In that event, I would impose a one year suspension. I would not have regarded a lesser period as appropriate though I did not hear Mr Harris’ full submissions on the appropriate period. If I am not satisfied that strike off would be disproportionate, and that the Committee, properly reasoning the issue, could well conclude that a one year’s suspension would not meet the requirement for sanction, then the matter should in my view be remitted.

That is because the Committee has had the advantage of hearing and seeing the evidence of Mr Brennan, and of forming a view of the sincerity of his evidence and of his determination and ability to avoid repetition of this conduct. It is also the professional decision maker, better able to deal with sanction, as recognised by the many judgments which accord respect to its decisions. It and not the judges is better placed to understand what the physiotherapy profession needs in a case of this sort. I say that because the sanction to be imposed here is not for public safety, but to deter other physiotherapists from similar behaviour and to maintain the confidence of the public, and of the sporting world in particular, in the integrity of the profession. For example, it is better placed to understand how widespread a problem there is of team physiotherapists, the common front line of on pitch contact between player and referee/umpire, being used to cheat on large or small scale interventions, whether substitutions or delays. It is better placed to understand the pressures which the team physiotherapist may be under from club, players and coach to cheat, and the extent to which this particular match has brought to light but remedied a problem, or whether the physiotherapist needs more than the threat of a year’s suspension to enable him to stand up to the pressure on him, and in particular to stand up for the junior physiotherapists, and to lead them in the maintenance of professional standards. It is better able to decide on the relationship between disciplinary proceedings by the sporting body, and what is required from the professional body as sanction for unfitness to practice. The Committee is better placed to judge what is needed to uphold the reputation of the profession in these circumstances.

I have considered carefully what sanction I would impose, as between a one year’s suspension and strike off. I do not accept Mr Harris’ submission that strike off would necessarily be disproportionate. There are at least two sets of circumstance in which a decision that Mr Brennan should be struck off would be proportionate.

The first is if Mr Brennan was insincere in his evidence to the Committee, and had not really grasped the need, at the price of losing his job, to stand up to an employer who told him to cheat, using his position as a physiotherapist; or if despite sincerely meaning what he said, he had shown himself over time to be such a weak person that he would nonetheless give way under pressure in one form or another to actions which were contrary to his professional obligations as a physiotherapist. I am not prepared to conclude, not having had the benefit of seeing Mr Brennan give evidence, that he was sincere, or more likely that that sincerity had not masked a real personal weakness which could realistically lead to repetition of similar conduct. I accept that the Committee might have taken either or a mixture of those views of his evidence. I am not prepared to reach a conclusion on sanction on a basis which may well be wholly at odds with the legitimate view of the body which heard Mr Brennan give evidence, simply on the basis that its decision is inadequately reasoned. That would be to give Mr Brennan a wholly illegitimate advantage from the inadequacy of reasoning, and would harm the profession. That tells in favour of remittal.

The second basis upon which a decision to strike off would not be disproportionate concerns deterrence and the reputation of the profession. If there is a real problem in the profession concerning how those involved in sport reacted to the instructions or pressures of coaches or clubs or players, whether passing fit those who were not fit, using their professional position for cheating, in particular to gain access to the player on pitch, or relying on their professional status in some other dishonest way, deterrence could justify strike off. But that would require careful consideration of whether that was necessary or proportionate, and the more so if the Committee accepted that Mr Brennan’s evidence was both sincere and likely to be effective to prevent repetition. The relationship to the sporting sanction would have to be considered.

If the reputation of the profession, and public confidence in it would be harmed by any lesser sanction than striking off, for cheating which involved the abuse of his position as a physiotherapist and then prolonged lying about it, that sanction would not be disproportionate. But the need for and proportionality of such a sanction again would require careful consideration if the evidence of Mr Brennan was both sincere and likely to be effective. The relevance of the position of Dr Chapman would require consideration. After all, the public have to retain confidence in the medical profession despite the want of sanction on her. These considerations tell in favour of remittal.

I could reach a decision on sanction, but to do so in this case would involve usurping the function of the Committee to appraise the evidence and to evaluate its significance, and its role in deciding what is necessary in the interest of the profession and of public confidence in it. Mr Harris will be able to deploy his full submissions on any period of suspension.

Accordingly, I quash the decision and remit it to the Committee with the direction that it reach a reasoned decision on sanction which addresses the issues to which the judgment refers in so far as they arise on its reasoning, and any other relevant points.

I will hear submissions on whether the decision should be remitted to the same Panel or to a different one, and whether any further directions are necessary.