Doris Anne Jones

Preliminary Matters

Amendment of the Allegation

1. At the commencement of the hearing, an application to amend the factual particulars of the Allegation in two respects was made on behalf of the HCPC. The proposed changes were:

• Particular 1 as referred by the Investigating Committee alleged that, “Between February 2018 and February 2020, you did not send discharge summaries to referrers in accordance with local agreed policies”. The HCPC sought to substitute for the contention that discharge summaries were not sent to referrers, a case which alleged that the Registrant did not record discharge summaries in accordance with local agreed policies. The amendment was sought because the evidence that was to be tendered related to the recording of discharge summaries in the position of the Registrant, it not being the HCPC’s case that the administrative task of communicating with the referrer fell to a person in the Registrant’s position.

• Particular 14, which alleged that vaginal examinations were not carried out, included the following particularised patients: Patient M, Patient O, and Patient P. The HCPC sought to delete these three patients from those particularised in Particular 14, the reason for that application being that the HCPC did not have the clinical notes relating to those patients in order to prove the case in relation to them.

2. No objection was made on behalf of the Registrant to the proposed changes.

3. The Panel considered that the requested amendments did not alter the overall nature of the case. They were appropriate in that they accorded with the evidence which was contained in the HCPC’s evidence bundle, and therefore, if made, would facilitate the making of a coherent decision by the Panel. Crucially, they did not give rise to a risk of prejudice to the Registrant. Accordingly, the Panel acceded to the HCPC’s application. The Allegation as it is set out above is in the amended form.

The Registrant’s response to the Allegation

4. After the Panel acceded to the amendment of the Allegation, the Registrant was offered an opportunity to respond to it. Various admissions to factual particulars were made on her behalf. Further admissions were made on the third day of the hearing, and a yet further element was formally admitted during the Registrant’s examination-in-chief. Rather than list the admissions made by the Registrant in this introductory section of the determination, the Panel considered that it was more appropriate to record them when the Panel’s decisions in relation to the various particulars to the Allegation were explained.

The Panel initially to decide and hand down its decision on the facts

5. Before the case was opened by the HCPC Presenting Officer, it was agreed that it would assist the parties for the Panel to hand down a determination explaining its decisions on the facts before going on to consider any other element of the Allegation that would need to be decided if relevant facts were found proven.

Background

6. The Registrant qualified as a Physiotherapist in 1978, and after qualifying she worked in a number of different roles for a number of different employers. In 1995, the Registrant commenced employment with Mid Staffordshire NHS Trust, working at Cannock Chase Hospital. Subsequently, that Trust merged with the Royal Wolverhampton NHS Trust (“RWT”). Following that merger, the Registrant continued to work at Cannock Chase Hospital, but also at New Cross Hospital. By the time of the events with which the Panel was concerned, the Registrant was working at Band 7 undertaking both musculoskeletal physiotherapy (“MSK”) and women’s health physiotherapy (“WH”). She was employed on a part-time basis, working 17.25 hours a week over Mondays, Tuesdays, and Wednesday afternoons.

7. In early 2020, a Consultant Gynaecologist raised concerns about a patient (a person identified in these proceedings as “Patient S”) who was not making the progress that had been expected. Ms LH (WH Team Lead Physiotherapist) saw the patient and discovered that she was incorrectly undertaking exercises which she, Ms LH, considered to be necessary. Ms LH also discovered that no vaginal examination had been carried out by the Registrant. Ms LH then looked at the clinical records of other current patients assigned to the Registrant, and she discovered that the notes confirmed that vaginal examinations were not being carried out.

8. A wider investigation into the Registrant’s practice (including MSK patients) followed, and the results of that investigation are reflected in the Allegation currently being considered by the Panel.

9. Both the oral and documentary evidence provided to the Panel included information about an earlier capability process that had been undertaken with regard to the Registrant between 2016 and 2017. At the conclusion of that process, the Registrant returned to her duties. It should be stressed that none of the factual issues which the Panel was required to decide involved matters either before or during that capability process; all of the factual particulars alleged in this case concerned alleged events following the conclusion of the capability process.

Decision on Facts

10. The HCPC called five witnesses to give evidence before the Panel. All of them were employed by RWT. They were:

• Mr VP, the Clinical Lead in Outpatient Physiotherapy and Occupational Therapy.

• Ms VC, a specialist MSK Physiotherapist and Team Lead for Cannock Chase Hospital.

• Ms KS, an Occupational Therapist and a Band 8 Physiotherapy and Occupational Therapy Manager.

• Ms LH, a Band 7 Specialist Pelvic Health Physiotherapist, a Team Lead role in WH at New Cross Hospital.

• Ms KL, a Nurse employed as a Matron. Ms KL conducted an investigation on behalf of RWT into matters related to the issues being decided by the Panel.

11. In addition to the oral evidence of the witnesses identified above, the Panel was provided with witness statements made by those individuals and in excess of 700 pages of documentary exhibits.

12. The Registrant gave evidence before the Panel. On the first day of the hearing, a 76-page bundle of documents and a detailed witness statement extending to 546 paragraphs over 55 pages were produced on behalf of the Registrant.

13. The Panel accepted the advice of the Legal Assessor in reaching its decision on the facts. Accordingly, the Panel remembered throughout that it was for the HCPC to prove matters against the Registrant on the balance of probabilities; at no stage was the Registrant required to disprove contentions raised against her.

14. In reaching its decisions, the Panel had regard to the totality of the evidence provided to it. In order for this determination to be kept to a sensible length, in explaining its reasons for its findings the Panel did not propose to quote extensively from documents. The Panel considered that it would be more helpful to the parties and for interested parties for a brief summary of its reasons to be provided. The Panel was aided in providing its reasons in that manner by the very helpful closing submissions provided in writing by both the Presenting Officer on behalf of the HCPC and Mr Lee on behalf of the Registrant.

Particular 1

1. Between February 2018 and February 2020, you did not record discharge summaries in accordance with local agreed policies.

15. The Registrant admitted this particular.

16. The HCPC’s case in relation to this particular was essentially that the Registrant did not record discharge summaries on an electronic system known as “POD”.

17. The Panel found that in the period between February 2018 and February 2020, the Registrant did not record discharge summaries on the POD system. Accordingly, the Registrant’s admission was accepted and Particular 1 was proven.

18. The Panel considered it to be necessary to deal with the issue of whether, in not using the POD system, the Registrant was consciously failing to perform in a manner that she could, and knew she should, have acted. The view of the Panel was that the HCPC failed to discharge the burden of proving that before 4 February 2020, the Registrant had been instructed in how to use POD or that she was, before that date, able to do so. The Panel accepted the Registrant’s evidence in this regard and found that it was consistent with the notes of a meeting held between Ms VC and the Registrant on 4 February 2020, and in particular the words, “[The Registrant] to speak to IT to get access to POD”. In sending an email to Mr VP on 5 February 2020, Ms VC recorded the Registrant as having said on 4 February 2020 that she did not know about POD and that she (Ms VC) had helped the Registrant to set it up on a couple of PCs.

Particular 2

2. Between February 2018 and February 2020, you did not complete MSK health questionnaires for patients being discharged from your services.

19. The Registrant admitted this particular.

20. The Panel found that during the period February 2018 to February 2020, there were MSK health questionnaires which were not completed for patients being discharged. Accordingly, Particular 2 was proven.

21. By way of a contextual finding, the Panel accepted the Registrant’s evidence with regard to this particular. She candidly admitted that some of the omissions resulted from her forgetting. Others were from patients not wishing to complete questionnaires, forgetting, or failing to return them. Other “open-access” patients with an agreed discharge date might not be seen face-to-face before discharge. The Panel also accepted the evidence of Mr VP that overall, the rate of compliance within the department was approximately 60%.

Particular 3

3. On 4 March 2020, when speaking with a patient's family member, and within hearing distance of other patients, you said words to the effect of:

a. “Stafford hospital is 15 years behind what it was since the takeover with Stoke”; and/or

b. “Cannock hospital is 10 years behind what it was since the takeover with Stoke”; and/or

c. “Staff are treated terribly by the Trust's senior management”.

22. The response of the Registrant to this particular was that she admitted she had had a conversation with a member of a patient’s family, but she denied that it was within hearing distance of other patients.

23. The man to whom the Registrant spoke was someone she knew in a professional capacity when she had been working in a role earlier in her career. He was in the department with his granddaughter, a young child, who was the patient. The disputed element of this particular turned on whether there were other patients within hearing distance of the Registrant when she spoke the words complained of. That the presence of other patients should be a key element of this particular was understandable; a conversation between two people who had previously been professionally connected might not be considered unprofessional, whereas to have that same conversation within the hearing of patients might be considered unprofessional.

24. Ms VC stated that she was approximately three metres from the Registrant when the words were spoken, and it was her evidence that other patients were present in the area where they were spoken. The Registrant admitted that she had a conversation along the lines of the words alleged in the particular, but was clear in her recollection that there were no patients present at the time. There was therefore a stark conflict of evidence. Having carefully considered the matter, the Panel concluded that the HCPC had not discharged the burden of proving, on the balance of probabilities, that there were other patients present. Accordingly, each element of Particular 3 was not proven.

Particular 4

4. When treating Patient A:

a. You completed tests for tennis elbow when this was not required;

b. You proposed that they start the Derby rehabilitation programme when this was not appropriate;

c. You did not record a summary of the exercises provided.

25. The Registrant denied each element of Particular 4.

26. Patient A was referred for physiotherapy following a surgical procedure related to his diagnosis of tennis elbow. The criticisms advanced in the three sub-particulars arose from Ms VC’s interpretations of the clinical notes made by the Registrant. The HCPC’s case was that a test for tennis elbow was not required given the clear diagnosis and reason for the referral for physiotherapy. It was contended that the notes disclosed that the Registrant proposed Patient A should start the Derby Rehabilitation Programme when that was not appropriate, as it is a programme designed to address problems with the shoulder. It should be noted that so far as sub-particulars (a) and (b) were concerned, the Allegation related to the doing of the alleged matters (i.e. undertaking the tests and proposing the programme), and not with the adequacy of the clinical notes made with regard to those matters. With regard to sub-particular (c), it was a complaint relating to recording, specifically that the Registrant did not record the use of a patient handout generated from “Physio Tools”, a programme for formulating exercise plans.

27. The conclusion of the Panel was that the contention the Registrant was undertaking tests for tennis elbow was not supported by the clinical notes; there was no clear test specifically designed to test for tennis elbow referred to in the notes. The notes did not undermine the Registrant’s case that she was testing the patient’s movements as part of an exercise plan, as opposed to diagnosing tennis elbow. So far as the contention relating to the Derby Rehabilitation Programme was concerned, the Registrant’s case was that she was using exercises included in that programme which were appropriate for the patient’s condition, but that she was not using the programme as a whole. Again, the Panel had not found there to be any evidence which would justify not accepting the Registrant’s evidence in that regard. With regard to the recording of a summary of the exercises provided to the patient, the Panel found that the Registrant did include in a number of entries within the patient notes an adequate summary of the exercises. That she did not use Physio Tools was explained by the fact that the patient stated he did not wish to have them.

28. The consequence of these findings was that the Panel found each element of Particular 4 to be not proven.

Particular 5

5. When treating Patient B:

a. You did not undertake detailed questioning of the patient;

b. You did not ask the patient about changes in sexual function;

c. You did not complete a full neurological assessment of the patient;

d. You did not complete an assessment of the patient's back.

29. The Registrant admitted sub-particular 5(b), but denied the other elements of this Particular.

30. With regard to detailed questioning of the patient, the special questions relating to the cervical and thoracic spine on the assessment form were not asked at the second appointment, when the patient presented with potential red flag symptoms which required those questions to be asked. Because the requirement to ask these questions arose at the second appointment, in this instance the Panel did not attach any significance to the fact that in the initial assessment form the special questions were struck through. However, the questions should have been revisited either by the use of the pre-printed form or by recording in the clinical notes the questions having been asked. The Panel carefully examined the notes made by the Registrant and concluded that they did not reflect sufficiently detailed questioning having been undertaken. Particular 5(a) was proven.

31. Particular 5(b) was admitted by the Registrant. The question about changes in sexual function was one in the lumbar spine section of the special questions and had not been ticked either yes or no. The Panel accepted that admission. Particular 5(b) was proven.

32. With regard to Particular 5(c), the Panel acknowledged that some neurological assessment was undertaken by the Registrant, but it was not a full neurological assessment. For example, the patient’s reflexes were not tested until approximately eight months after the initial assessment, and neither a Babinski test nor straight leg testing was undertaken at any stage. Particular 5(c) was proven.

33. As Particulars 5(c) and 5(d) were advanced as separate allegations, the Panel took the view that sub-particular 5(d) must represent a criticism of the assessment apart from the neurological assessment, and the Panel reached its decision on this construction. However, for the reason given in relation to sub-particular 5(a), the Panel found that the Registrant did not complete an assessment of the patient’s back. Particular 5(d) was proven.

Particular 6

6. When treating Patient C:

a. You tested myotomes and dermatomes when this was not necessary;

b. You did not ask the patient special questions regarding their knee, including if it gives way, or if there was any swelling.

34. The Registrant denied both limbs of this particular.

35. Patient C had a painful left knee in which mild degenerative changes had been identified when X-rayed. In these circumstances, it was contended by the HCPC that there was no clinical reason for testing myotomes and dermatomes.

36. The Registrant’s explanation for testing myotomes and dermatomes was that during the 2016-2017 capability process, she had been told by Ms VC to include those tests when examining patients. On behalf of the Registrant, at paragraphs 76 to 79 of his closing submissions, Mr Lee submitted that the testing was neither invasive nor dangerous and that the tests were not contra-indicated. He submitted that these issues were relevant to the question of whether the tests were “necessary”.

37. The tests were either necessary or they were not. If unnecessary tests were undertaken, the absence of harm to the patient (or of risk of harm) would clearly be relevant at a later stage of the case, but it could not bear upon whether the tests were necessary. For that reason, the Panel was not attracted by the approach suggested by Mr Lee. In the judgement of the Panel they were not necessary. Particular 6(a) was proven.

38. With regard to Particular 6(b), the Panel took the view that three matters were alleged: special questions regarding the knee; whether the knee gave way; and whether there was any swelling. The patient’s notes made by the Registrant disclosed a subjective examination that was sufficiently full. There was explicit mention of swelling of the knee. The Panel found the HCPC’s submission that these references resulted from the patient telling the Registrant that she experienced swelling, rather than as a reply to a specific question from the Registrant, was an argument which ignored the reality of how a face-to-face assessment would be undertaken. It was true that there was no explicit mention of the knee giving way. However, there was a discussion about the patient’s circumstances (for example, having an upstairs toilet), activities (for example, stairs and her walking ability), and the knee locking. Given the extent of the subjective assessment, the Panel did not find that the HCPC had proved, on a balance of probabilities, that the Registrant did not ask about the knee giving way. Particular 6(b) was not proven.

Particular 7

7. When treating Patient D:

a. You did not ask all the obstetric and/or cauda equina questions required to fully assess the patient;

b. You did not do a full pelvic girdle pain assessment.

39. The Registrant denied Particular 7(a) and admitted Particular 7(b).

40. There were two elements of Particular 7(a): (i) obstetric questions required to fully assess the patient; and (ii) cauda equina questions required to fully assess the patient.

41. With regard to the obstetric questions, the HCPC’s case was that the Registrant did not use the obstetric assessment form. The Registrant’s case was that the obstetric form was not available for her to use and that it was her usual practice to ask the questions which use of that form would have prompted.

42. The Panel did not feel it necessary to decide if there were occasionally problems with the availability of the appropriate form because, for the purposes of this decision, the Panel was able to assume there may on occasions be such difficulties. However, if the appropriate form was, for whatever reason, not used, there was clearly an obligation placed on the professional to ensure that the questions which would have been prompted by the form were asked. The Panel accepted Mr Lee’s general submission that the absence of an entry in the clinical notes should not automatically be taken as proof that the unrecorded action was not undertaken. However, in the circumstances of this case, involving a patient which the Registrant admitted she could not remember, the Panel did find that the absence from the Registrant’s notes of reference to the questions which appeared on the obstetric form demonstrated that the questions were not asked. The obstetric questions were required to fully assess the patient.

43. The HCPC’s case in relation to cauda equina questions was founded upon the fact that in the assessment form, the pre-printed special questions relating to the lumbar spine were simply struck through by the Registrant. The Registrant’s answer to the striking through of questions in relation to this patient (but not in relation to another patient) was that it was indicative of her asking the questions but receiving negative replies from the patient. The Panel did not accept the Registrant’s evidence in this regard. It based that finding not simply on the basis that it would be a wholly inappropriate way to record negative replies given by the patient (particularly as the form provided space for a tick against a yes or no reply). In this instance the striking through was of the entirety of the special questions, including those relating to the cervical spine and thoracic spine. The Panel was satisfied that the HCPC had proved, on a balance of probabilities, that the lumbar spine questions (bearing upon cauda equina) were not asked. However, on the basis of the evidence in chief of Ms VC, the Panel had not been persuaded that cauda equina questions were necessary to fully assess the patient, given the absence of a presenting condition that involved leg pain.

44. The result of these findings was that Particular 7(a) was proven only in relation to the failure to ask all necessary obstetric questions.

45. The Panel found that the Registrant’s admission of Particular 7(b) accorded with the evidence presented to it. For the avoidance of doubt, the Panel did not overlook the document included in this patient’s notes entitled, “The Pelvic Girdle Questionnaire”. The Registrant’s evidence was that she was not responsible for this document, and it was not in any event an assessment.

46. Particular 7(b) was proven.

Particular 8

8. When treating Patient E, you did not complete the objective assessment forms.

47. The Registrant denied Particular 8.

48. The HCPC’s case was based on the fact that significant parts of the Obstetric Pelvic Girdle Pain Assessment form were struck through. The Registrant did not dispute the striking through, but sought to justify her denial of the particular on the basis that the striking through indicated the assessment was not done, and it would have been wrong to complete the form as if it had been done.

49. In the judgement of the Panel, it was not appropriate to strike through elements of an assessment form without indicating in the patient’s notes why that had been done. Clinical reasoning for not undertaking the assessments was required, something that could not be gleaned by merely striking through with no elaboration.

50. Particular 8 was proven.

Particular 9

9. When treating Patient F:

a. You did not complete a full obstetric assessment of the patient;

b. You did not complete a neurological examination of the patient;

c. You recommended an exercise that was inappropriate for the patient.

51. The Registrant admitted Particulars 9(a) and (b), but denied Particular 9(c).

52. The Panel accepted the Registrant’s admissions with regard to sub-particulars 9(a) and (b), as they accorded with the evidence that neither a full obstetric assessment nor a complete neurological assessment was carried out. Particulars 9(a) and (b) were therefore proven.

53. The HCPC’s complaint concerning Particular 9(c) related to an exercise described as “prone lying frog”. It was argued that the exercise was inappropriate for a heavily pregnant patient because of the increased pressure on the uterus and the risk of reduced foetal movement, as well as the placing of pressure on the patient’s breasts, which would be likely to be sensitive. In answer to these complaints, the Registrant stated that she learned of the exercise on a course she attended and, in suggesting it to Patient F, modified the position she should adopt so that she would be on her side, half lying and supported with pillows.

54. The Panel did not feel able to conclude that in all circumstances, for all patients, even for those 31 weeks’ pregnant as Patient F was, that the exercise would be inappropriate. However, the conclusion of the Panel was that it was not appropriate to prescribe it for Patient F for the simple reason that the assessments reflected in sub-particulars 9(a) and (b) had not been completed. Without those assessments being completed, it was not possible for it to be determined that the exercise was appropriate. Particular 9(c) was proven.

Particular 10

10. When treating Patient G:

a. You did not complete a women's health assessment for the patient;

b. You did not ask cauda equina questions required to fully assess the patient;

c. You did not complete a back assessment for the patient;

d. You did not complete a neurological assessment for the patient;

e. Your records did not clearly record the exercises recommended to the patient.

55. The Registrant admitted Particulars 10(a), (c), (d) and (e), but denied Particular 10(b).

56. Patient G was referred for a MSK assessment. As a proposition of fact, the Registrant did not complete a women’s health assessment in relation to Patient G. The Registrant’s admission of Particular 10(a) no doubt reflected that fact. However, in construing Particular 10(a), the Panel took the view that there was an implicit contention that the Registrant had an obligation to complete a women’s health assessment. Were that not so, a bald proposition of fact from which no shortcoming could be contended would have no place standing as a particular of misconduct or lack of competence. Furthermore, if the issue of whether there was a duty to perform the assessment was not decided at the facts stage of the Panel’s enquiry, there would be a prospect of it being decided in relation to the statutory grounds, something that would be unsatisfactory not least because no burden or standard of proof would apply at that stage.

57. Having carefully considered the question of whether the circumstances which existed in relation to Patient G clearly demonstrated that a women’s health assessment was required, the conclusion of the Panel was that the HCPC had failed to discharge the burden of proving that it was. Given this finding, it was not necessary for the Panel to reach a finding on whether financial considerations would have required Patient G to be re-referred for a women’s health assessment had there been circumstances suggesting it was required. Accordingly, Particular 10(a) was not proven.

58. Particular 10(b) alleged that the Registrant did not ask the cauda equina questions required to fully assess Patient G. The HCPC’s case was based on the fact that in completing the patient’s answers to the pre-printed special questions relating to the lumbar spine, the Registrant ticked the no box in relation to the three questions of whether the patient experienced saddle anaesthesia, altered bladder/bowel function, and bilateral pins and needles, but ticked neither yes nor no to the question which asked about gait disturbance/widespread or progressive motor weakness.

59. The Registrant’s case was that the absence of a recorded reply to the question about gait disturbance/widespread or progressive motor weakness represented, at worst, a note-keeping deficiency, but did not prove that the question was not asked.

60. The conclusion of the Panel was that the HCPC had not demonstrated that the Registrant did not ask cauda equina questions to fully assess the patient. It would obviously have been desirable for a no tick to have been placed against the question which was not addressed on the assessment form, but it was clear from the notes as a whole that the Registrant asked the patient (who had hip replacement surgery scheduled) about her gait/walking ability. Particular 10(b) was not proven.

61. Sub-particulars (c), (d) and (e) of Particular 10 were all admitted on behalf of the Registrant at 11:00am on Wednesday 17 April 2024. The admissions relating to 10(c) and (d) accorded with the evidence and were proven. Sub-particular (e) required special mention because Mr Lee’s closing submissions were written in terms which suggested that the admission was withdrawn. However, the Panel found the sub-particular to be proved on the basis of the Registrant’s evidence contained in paragraphs 302 to 307 inclusive of her witness statement.

62. In summary therefore, in relation to Particular 10, sub-particulars (a) and (b) were not proven and sub-particulars (c), (d) and (e) were proven.

Particular 11

11. When treating Patient H:

a. You did not complete a hydrotherapy screening form;

b. You did not complete an objective assessment and/or an adapted functional assessment.

63. The Registrant denied both limbs of Particular 11.

64. It was the case that neither a hydrotherapy screening form nor an assessment document were included in the notes. The issue, however, was whether the patient’s notes which had been used to advance these allegations against the Registrant were complete. Ms VC contended that they were complete. The Panel did not doubt that they were “complete” in the sense that they comprised all of the documents which were available to Ms VC when she obtained them. However, in the judgement of the Panel they were demonstrably not complete in the sense of being all the documents that were, at some stage, included in the patient’s notes. The last page of the pre-printed assessment form was numbered in handwriting by the Registrant as page 7. At the foot of that page it was written that the notes continued on page 8. No further page that could be page 8 was included in the exhibits provided to the Panel (or, presumably, seen by Ms VC).

65. In circumstances where the case was sought to be proved by the absence of documents, and the presented documents were incomplete, the Panel was driven to find that the HCPC had not discharged the burden of proving either limb of Particular 11. It followed that Particular 11(a) and (b) were not proven.

Particular 12

12. When treating Patient I:

a. You did not record which myotomes and dermatomes were assessed;

b. You did not complete all shoulder tests, including impingement tests.

66. The Registrant admitted Particular 12(a) and denied 12(b).

67. The Panel accepted the Registrant’s admission of Particular 12(a), as it was clear from the entry which she made in the notes that the myotomes and dermatomes tests were not identified. Particular 12(a) was proven.

68. The complaint made by the HCPC in relation to Particular 12(b) was that not all shoulder tests, including impingement tests, were undertaken. As was submitted on behalf of the Registrant, there were very many shoulder function tests, and it could not reasonably be expected that the Registrant would undertake all of them. In deciding if the tests the Registrant undertook were sufficient for the circumstances as presented to the Registrant when she saw Patient I, it was relevant to record the fact that the Consultant Orthopaedic and Upper Limb Consultant who referred the patient for physiotherapy referred her on the basis he had ultrasound scan results and “positive impingement tests”. That being the case, the Panel found that, although other tests might have been done, the “empty can” test for shoulder impingement was appropriate and relevant to the patient’s condition. The result was that the Panel found that the HCPC had failed to discharge the burden of proof in relation to this sub-particular. Particular 12(b) was not proven.

Particular 13

13. When treating Patient J:

a. You did not complete an objective assessment;

b. You did not complete a full back assessment;

c. You did not complete a neurological assessment;

d. You did not complete an obstetric assessment;

e. You recommended an exercise, which may have been inappropriate for the patient because a risk assessment was not completed.

69. The Registrant admitted Particulars 13(a), (b), (c) and (d), but denied Particular 13(e).

70. The Panel accepted the Registrant’s admissions that she did not complete an objective assessment, a full back assessment, a neurological assessment, or an obstetric assessment. The explanation given by the Registrant for not doing so was that the patient was also consulting a Chiropractor. The Registrant’s admissions that the assessments were not undertaken accorded with the evidence produced at the hearing. In the judgement of the Panel, the fact that the patient was also consulting a Chiropractor could well properly lead to a physiotherapist declining to prescribe exercises, but it did not remove the obligation to undertake the assessments of the patient’s condition; without undertaking the assessments, it would not be possible for a physiotherapist to give measured advice to the patient with regard to the relative merits of remaining with the Chiropractor or considering physiotherapy interventions. Accordingly, Particulars 13(a), (b), (c) and (d) were proven.

71. The HCPC’s contention in relation to Particular 13(e) concerned the recommended use of an exercise ball and the suggestion that the patient might have bounced on the ball. The Panel accepted that the Registrant’s entry in the notes which read, “use of ex. ball for sitting, during labour & exs”, did not support the proposition that she recommended the patient should bounce upon it. However, there was a more fundamental reason why the Panel considered that it was inappropriate for the Registrant to have recommended the use of the ball, and that was the simple fact that she had not (as she acknowledged) undertaken any assessments of the patient which would have enabled her to decide what (if any) exercises were appropriate. Particular 13(e) was proven.

Particular 14

14. You did not carry out required vaginal examinations on Patient K, Patient L, Patient N, Patient Q, Patient R, and/or Patient S.

72. The Registrant admitted Particular 14.

73. The Panel accepted the Registrant’s admission in relation to the six identified patients, as the clinical notes disclosed that no vaginal examinations were undertaken by her in their cases.

74. A lengthy appointment of 60 minutes was provided, and generally that time should be sufficient for a vaginal examination to be undertaken. The Panel accepted the HCPC’s evidence that it was important for a vaginal examination to be undertaken on the first appointment. A vaginal examination would provide a baseline by which the efficacy of physiotherapy interventions could be measured. Another reason why a vaginal examination was important at the first appointment was because if it was left with the intention of doing it at a later appointment, the patient might not attend, with the consequence that the opportunity to undertake a vaginal examination would be lost.

75. The particular under consideration related to six specific and identified patients. By the wording of the particular under consideration, those six patients were not advanced as examples of a wider problem. For that reason, apart from recording that the HCPC’s evidence suggested a greater proportion of patients allocated to the Registrant did not have a vaginal examination on the first appointment than patients allocated to other practitioners, the Panel did not consider it appropriate to reach specific findings relating to numbers or percentages. It should also be said that the Panel acknowledged there would inevitably be some cases where it would be either not possible or inappropriate to undertake a vaginal examination on the first appointment; for example, the patient might arrive significantly late for the appointment, or attend unaware that such an examination was in prospect and be unwilling for it to take place.

76. The Panel did not propose to examine the circumstances of each of the six patients included in Particular 14, but it did propose to explain briefly its findings in relation to Patient S. This was not only because (as stated in paragraph 7 above) it was the complaint in relation to the treatment of this patient which started the whole process that culminated in this hearing, but also because the case of Patient S demonstrated the importance of undertaking the examination. The Registrant first saw Patient S on 5 August 2019, and thereafter saw her on a further three occasions (29 August 2019, 4 November 2019, and 20 January 2020) before the Consultant Gynaecologist raised the patient’s lack of progress with Ms LH. When Ms LH saw Patient S on 4 February 2020, she discovered that the Registrant had not undertaken a vaginal examination and that the patient was undertaking exercises incorrectly, thereby hindering her recovery and delaying her return to work.

77. Particular 14 was proven.

Decision on Grounds

78. The Panel allowed the parties time to consider the written determination explaining its reasons for the findings of fact before delivering their submissions on the statutory grounds and impairment of fitness to practise.

79. The Panel began its consideration of the statutory grounds by considering whether the proven facts (or some of them) justified a finding of lack of competence. The Registrant was an experienced Physiotherapist of long standing, who at the time of the relevant events was both employed and working at Band 7. In 2008 she gained an MSc in Neuromusculoskeletal Heath Care at Keele University, an achievement gained while working in the role she had before the merger of the two hospital trusts. Furthermore, Mr VP, who was involved in the 2016-2017 capability process, formed the opinion that at the end of that process the Registrant was competent to return to work at a Band 7 level. The opinion of Mr VP was consistent with that of Ms KL, who, in the context of the investigation she undertook, expressed the view that the Registrant had all the skills required to undertake the tasks which Ms KL investigated. In short, the Panel found that all the evidence pointed one way, namely that the Registrant did not lack either the knowledge or skills to undertake the tasks represented by the Panel’s findings of fact. Accordingly, the Panel considered that the statutory ground of lack of competence was not made out.

80. The Panel next considered misconduct. The Panel had regard to the standards of the HCPC’s Standards of Proficiency for Physiotherapists and Standards of Conduct, Performance and Ethics helpfully identified by the HCPC Presenting Officer. Unsurprisingly, the findings of fact made by the Panel necessarily translated to breaches of those two sets of standards. However, the Panel did not consider that it would assist a full understanding of this case for the particular standards breached to be listed. What the Panel considered would be more illuminating was for it to express its view on the seriousness of the proven particulars.

81. In the judgement of the Panel, some of the proven particulars were of a type that did not (and would not, if repeated) give rise to a substantial risk of harm to patients. These were Particulars 1 (not recording discharge summaries in the approved manner), 2 (not completing MSK health questionnaires for patients being discharged), 6(a) (a patient would not be harmed by undertaking unnecessary myotome and dermatome testing), 8 (the Panel noting that this particular was concerned with the completion of the form, not with the undertaking of the assessment), and 12(a) (not identifying which myotomes and dermatomes were assessed).

82. Conversely, the Panel considered other proven particulars were serious as they did give rise to a real risk of harm to patients. There was a failure to undertake initial assessments, failure to ask required questions, and the prescribing of exercises without establishing that they were appropriate for the patient. Serious “red flag” issues were involved. These particulars were 5(a), (b), (c), & (d), 7(a) & (b), 9(a), (b) & (c), 10(c), (d) & (e), 13(a), (b), (c), (d) & (e), and 14. These particulars involved a total of 11 patients.

83. Having carefully considered the matter, the Panel concluded that the proven particulars identified in paragraph 81 above, even when taken together, did not reach the level of seriousness to merit being categorised as misconduct. Indeed, the Panel did not consider that it would be appropriate to include them in such a finding, even with the more serious findings.

84. However, in the judgement of the Panel the serious findings identified in paragraph 82, when taken collectively, did cross the threshold properly to be described as misconduct; fellow Physiotherapists would consider the acts and omissions which gave rise to these findings to be deplorable.

85. Having decided that misconduct was established, the Panel was then required to consider whether that misconduct was currently impairing the Registrant’s fitness to practise.

Decision on Impairment

86. In deciding the issue of current impairment of fitness to practise, the Panel paid close attention to the HCPTS Practice Note on the topic. Accordingly, the Panel considered both the personal and public components of impairment.

87. With regard to the personal component, the Panel was satisfied that shortcomings of the type represented by the findings that were described as serious in paragraph 82 above are conceptually capable of being remediated. When the Panel asked itself whether the Registrant had in fact remediated them, the conclusion of the Panel was that she had not. The Panel did not overlook the fact that the Registrant has not been practising since she was suspended from the relevant employment and she has since retired. That fact would limit her ability to demonstrate remediation. The Panel also acknowledged that admissions were made by the Registrant to some of the proven particulars, and that an admission of a shortcoming in circumstances where the practitioner has the ability to perform the task goes some way towards suggesting that the issue might not recur. Again, the Panel acknowledged that the Registrant provided some reflective comments, but these were partial. Overall, the Panel would categorise the Registrant’s insight as limited. When the Panel stood back and asked itself the question of whether there was a risk of repetition, the answer to that question was that it could not be said there was no risk that issues of the type identified by the findings would recur. For this reason, the Panel concluded that the Registrant’s fitness to practise is impaired upon consideration of the personal component.

88. The Panel then considered the public component. The fact that there remained a risk of repetition was itself sufficient to require a finding of impairment in respect of this component. However, the Panel also found that a finding of impairment of fitness to practise was required in order to declare and uphold proper standards and to maintain a proper degree of confidence in the profession of physiotherapy and the regulation of it. It followed that a finding of current impairment of fitness to practise was made in respect of the public component.

89. The finding of misconduct currently impairing the Registrant’s fitness to practise required the issue of sanction to be considered.

Decision on Sanction

90. After the parties had an opportunity to consider the Panel’s written determination explaining its decision on the statutory grounds and impairment of fitness to practise, they made their submissions on sanction.

91. On behalf of the HCPC, the Presenting Officer made her submissions in writing. She identified some mitigating and aggravating factors which the Panel might wish to consider. She made it clear that the HCPC did not urge the Panel to apply any particular sanction, but she did submit that the Panel should have regard to the HCPC’s Sanctions Policy and the guidance contained within that document.

92. On behalf of the Registrant, Mr Lee stated that he would put to one side, for the purposes of the submissions he would make, the fact that the Registrant had stated she no longer wished to work as a Physiotherapist, acknowledging that the Panel would be required to impose a sanction which it considered to be necessary despite any presently stated intention by the Registrant. He reminded the Panel that the Registrant had referred herself to the HCPC and that she had fully engaged with the HCPC in the fitness to practise process. He also submitted that the Registrant had demonstrated a commitment to her profession. He submitted that a Conditions of Practice Order made for the shortest period which the Panel considered necessary would be an appropriate outcome. He suggested that conditions relating to education and training, practice restrictions (for example, not being the only physiotherapist working on a shift), and a supervision requirement would serve to protect the public. He submitted that to go beyond a Conditions of Practice Order, which would necessarily involve the imposition of a Suspension Order, would result in a disproportionately severe sanction being imposed. Mr Lee acknowledged that, in suggesting a Conditions of Practice Order should be made, the circumstances were somewhat unusual as it was the Registrant’s present intention not to return to practice as a Physiotherapist. However, he submitted that the order could be worded so that the conditions would apply in the event of the Registrant wishing to take up further employment.

93. The Panel accepted the advice it received from the Legal Assessor. Accordingly, it accepted that a sanction should not be imposed to punish the Registrant. Rather, a sanction should only be imposed to the extent that it is necessary to protect the public, to maintain public confidence in the physiotherapy profession and the regulation of it, and to declare and uphold proper professional standards. As a finding that an allegation is well founded does not necessarily require the imposition of a sanction, the first question to be addressed was whether the findings in this particular case required a sanction. If a sanction was required, then the available sanctions must be considered in an ascending order of gravity until one which was appropriate was reached. As the finding in this case was one of misconduct, the entire sanction range up to, and including, striking off was available.

94. At the outset of its deliberations, the Panel assessed the particularly important factors that might dictate whether a sanction was required, and if it was, what that sanction should be. The Panel also addressed the question of aggravating and mitigating factors.

95. The Panel considered that the fact the shortcomings underpinning the Panel’s findings occurred a very short time after the earlier capability process was one which added to the seriousness of the case. That capability process took place in 2016 - 2017, and concluded with the Registrant being deemed fit to return to practice as a Band 7 practitioner. The risk of harm to patients has already been mentioned in explaining why the findings identified as serious justified a conclusion of misconduct, but it was one which was relevant in deciding the issue of sanction. The risk of future harm already described by the Panel arose because the Panel found that the Registrant’s insight into her actions was not complete, and that in part was because she had not accepted full responsibility for her own professional failings. The Panel accepted that there was no evidence the condition of any patient was positively worsened by the Registrant’s acts or omissions, but there was evidence that the physical recovery of Patient S was delayed, as was her return to work as a consequence. Additionally, there was a risk that patients would lose confidence in physiotherapy intervention if treatments were not appropriately undertaken.

96. In favour of the Registrant, the Panel took account of a number of factors. There had been no previous fitness to practise issues recorded against the Registrant, and she had submitted a very positive testimonial from a former colleague. Further, it accepted that it was the Registrant herself who referred the fitness to practise concerns to the HCPC, and thereafter she had fully engaged in the fitness to practise process. It was also fair to record that the Registrant admitted some (but not all) of the matters found proved by the Panel, and that she had expressed an apology and remorse in relation to her admitted failings.

97. When the Panel addressed the question of whether this was a case in which a sanction was required, the fact that there remained a risk of future harm required the answer to that question to be that it was. For the same reason, a caution order would not be appropriate because it would provide no protection against a recurrence of shortcomings that would put patients at risk.

98. It followed that the Panel next considered whether a Conditions of Practice Order should be made. The Panel spent a good deal of time considering possible conditions that could be imposed, including training, restricted practice, supervision, and the obligation to prepare a personal development plan. However, the conclusion arrived at by the Panel was that there would be no difference in substance between any conditions that could be formulated now and the regime under which the Registrant worked while undergoing the 2016 - 2017 capability process, which proved not to have any lasting effect. It followed that when the Panel had regard to the factors listed in paragraph 106 of the Sanctions Policy as those which are likely to be presented in conditions of practice cases, there were a number which did not apply in the present case. In short, in the light of the history of the earlier capability process, the Panel could not be confident that the imposition of conditions of practice would reduce the risk of harm to a sufficiently low level that the Registrant should be able to return to practice even while subject to those conditions.

99. Having rejected a Conditions of Practice Order as an appropriate sanction, the Panel next considered whether a Suspension Order should be made. The Panel concluded that a Suspension Order would be an appropriate sanction. It would serve both to protect service users from the risk of harm and to underline the seriousness of the findings made. It would also give the Registrant an opportunity to seek to remedy the shortcomings identified by the Panel’s findings.

100. Before confirming that a Suspension Order should be imposed, the Panel considered whether the outcome that would be dictated were it not made, namely a Striking Off Order, would be appropriate. The conclusion of the Panel was that, at the present stage, a Striking Off Order would be disproportionate. That was because it would deprive the Registrant of the opportunity of taking steps to persuade a future reviewing panel that she should be able to return to practise as a Physiotherapist.

101. As to the duration of the Suspension Order, the Panel considered that it should be made for the maximum period of 12 months. An order of this length might well be required if the Registrant wished to take steps to address the identified shortcomings.

102. There were two further matters that the Panel should mention. One was that it is customary for suggestions to be made to suspended registrants as to the steps which they might wish to take in order to put evidence before a reviewing panel. In this particular case, the Panel considered that it should be for the Registrant herself to identify what she should do to address the issues of patient assessment, red flag identification, clinical reasoning, and record-keeping which the findings in this case involve. The other matter the Panel felt it should mention was that the Registrant should be aware that, when the Suspension Order is reviewed before it expires, the reviewing panel will have jurisdiction to impose any of the sanctions that could have been imposed today. What sanction (if any) that will be imposed on that review will, of course, be entirely a matter for the panel conducting the review, but the Registrant would be well advised to approach the review on the basis that if no substantial steps towards remediation are taken, the reviewing panel might well take the view that a Striking Off Order would no longer be disproportionate.

That the Registrar is directed to suspend the registration of Mrs Doris Anne Jones for a period of 12 months from the date this order comes into effect.

This order will be reviewed again before its expiry.

Interim Order

Application

1. After the Panel announced its decision that the substantive sanction was a Suspension Order for a period of 12 months, the HCPC Presenting Officer applied for an Interim Suspension Order for a period of 18 months to cover the appeal period. The application was advanced on the basis that an interim order was required to protect members of the public and was otherwise in the wider public interest.

2. When offered the opportunity to make submissions on behalf of the Registrant, Mr Lee stated that no representations would be made.

Decision

3. The Panel approached the issue on the basis that it acknowledged the default position established by the legislation is that a registrant’s ability to practise is not restricted until their appeal rights are extinguished. It follows that positive reasons are required if that default position is to be departed from. Any such reasons are required to be measured against the grounds which can justify the imposition of an interim order, namely: (i) that it is necessary for protection of members of the public; (ii) otherwise in the public interest; and (iii) in the interests of the Registrant herself. If one or more of those grounds is met, the Panel must first consider whether interim conditions of practice will satisfy the reasons why an interim order is required. It is only if an interim order is required, but interim conditions are not appropriate, that an Interim Suspension Order should be made.

4. The Panel concluded that the risk of future patient harm required an interim order on the first and second grounds identified in the preceding paragraph. For the same reasons that conditions of practice were rejected as an appropriate substantive sanction, the Panel rejected interim conditions of practice as being sufficient to address the risk during the appeal period. It followed that the Panel considered that an Interim Suspension Order was required.

5. The Panel made the Interim Suspension Order for a period of 18 months. Such a period was appropriate because if the 28-day period within which an appeal could be made passed without the Registrant launching an appeal, the Interim Order would simply lapse. If, however, the Registrant did appeal against the Panel’s decision and Order, the final resolution of that appeal could well take a period of 18 months.

Interim Order

The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Doris Anne Jones