I wasn’t THAT bad was I? (Brennan v. Health Professions Council [2011] EWHC 41 (Admin))

See also: http://blogs.bmj.com/bjsm/2011/01/23/bloodgate-reversal-of-fortune-ethicist-lynley-anderson-comments/; http://www.guardian.co.uk/sport/2011/jan/21/harlequins-physio-brennan-overturns-bloodgate-decision

Read the Full transcript of the case at: http://www.bailii.org/ew/cases/EWHC/Admin/2011/41.html

The case concerns the appeal by Stephen Brennan, the former head physiotherapist at Harlequins Rugby Football Club (RFC), against the punishment imposed by the Health Professions Council (HPC) for his part in the ‘Bloodgate’ scandal.

‘Bloodgate’ concerned a European Rugby Cup (ERC) match between Harlequins RFC and Leinster on the 12th April 2009. Harlequins were losing the match, and their head coach, Dean Richards, wanted to bring their principal fly half (Nick Evans) back onto the pitch. The problem was, as Evans had been substituted for another player (Tom Williams), the only way this would be possible is for Williams to go off himself due to a ‘blood injury’. Brennan, as Harlequins head physiotherapist, went onto the pitch to talk to Williams during a stoppage in play. During this time, he gave Williams a fake blood capsule he conveniently had in his bag. A couple of minutes later, Williams bit down on the capsule and following Brennan’s inspection of him was substituted by the referee. Evans came back onto the pitch, but subsequently (or justly, depending on your viewpoint) missed a crucial kick.

To cover their tracks against the suspicions of the ERC match director, the Leinster team doctor and the 5th official, Dr Chapman (the Harlequins team doctor) deliberately cut William’s lip. Brennan then photographed this cut to support his actions.

At an ERC investigation into what they suspected was a fake blood injury, Brennan lodged a false account of what had happened and prepared false witness testimony for both Nick Evans and Tom Williams. However, this testimony fell apart as Tom Williams later confessed to the ERC what had happened. All parties involved Williams, Brennan, Richards, Chapman etc were all punished by the ERC (Brennan being banned from participation in all rugby activities for 2 years). Stephen Brennan and Dr Chapman were also brought in front of the disciplinary panels of their professional bodies.

On the 14th September, the Competence and Conduct Committee of the Health Professions Council (HPC) struck Brennan from its register for misconduct, it did however note that Mr Brennan’s clinical skill was not in issue [10]

Effectively while Brennan does not dispute that he was at fault, the case is his appeal against the severity of the HPC sanction. In effect, while the HPC had the power to make one of four sanctions:

  • Caution Brennan for a period of 1-5 years – appropriate if the lapse is isolated, low risk of recurrence or the registrant has taken remedial action [17].
  • Impose conditions of practice for upto 3 years – appropriate where the failure or deficiency is capable of being remedied, there is no risk of future harm, and there has been no breaches of trust or evidence of dishonesty [18-20].
  • Suspend his registration for upto 1 year
  • Strike him off the HPC register – appropriate if there is a finding of deliberate dishonesty, rather than ignorance of the appropriate standards:
    • “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 resolves matters will suggest that a lower sanction may not be appropriate.” [22]

 While Brennan freely admits at [8] that he:

  • Purchased a number of fake blood capsules and kept one in his bag during the match
  • provided a capsule to Tom Williams and encouraged him to cheat
  • actively attempted to conceal the fabricated injury to deceive match officials and Leinster RFC
  • prepared false and/or inaccurate statements for two players to use at the ERC enquiry
  • lied during his own testimony to the ERC enquiry
  • had fabricated blood injuries to players on at least four other occasions between 2006-09

He argues that the HPC sanction (striking off) was unduly punitive, as the primary objective of an HPC sanction (the future protection of the public) was not at issue in this case [45] and that Dean Richards was accepted to have instigated the incident [11].

Brennan further argues that any sanction awarded should be a balancing exercise between his rights, the deterrent effect to other registrants, the reputation of the profession, and the public confidence in the regulatory process [13].

 The High Court nearly agreed with him at [45], when it suggested that the HPC Committee had not adequately dealt with the case for why Mr Brennan should be struck off. In particular, Mr Justice Ouseley stated that the HPC’s reasoning was not legally adequate; in that it does not enable the informed reader to know what view it took of the important planks in Mr Brennan’s case. Instead, Ouseley J required the Panel to:

  • Consider how the individual had responded
  • The sincerity and effectiveness of that response
  • The reality of repetition in view of his insight into how the practice of the profession related to his obligations to his employer in professional sport
  • Any punishment inflicted by the sport’s regulatory body
  • The effect which various sanctions would have on the legitimate objectives of sanction for unfitness to practice

That is not to say the High Court is saying that the HPC Panel were wrong in making the decision they did, rather the decision to remit the case back to the Panel is saying that the HPC didn’t give enough reasons to underpin and support this decision and they would need to review and more fully reason their decision. Interestingly, the Court also explicitly accepted two instances where striking off would not be disproportionate:

  1. If Mr Brennan was insincere in his evidence to the committee and had not grasped the need to stand up to an employer applying pressure to abuse his professional qualifications [61]
  2. Where the sanction was for important for deterrent reasons or to prevent damage to the reputation of the profession.  Such an argument would however depend on other factors such as any sporting sanction imposed, and punishments to other parties.

What made this case unusual was the tension between traditional ‘unfitness to practice’ and sporting sanctions:

“Mr Brennan’s dishonesty occurred in unusual circumstances since patients were not harmed, and what was done at the behest of a dishonest coach on behalf of their joint employer. Cheating a 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.” [52]

and

“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.” [54]

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About Kris

Associate Professor in Sports Law, Staffordshire University; British Gymnastics Senior Coach

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