Stefania Antonucci

Preliminary Matters:

Service

1. The Panel was satisfied that the notice of hearing dated 29 November 2023 was sent to the Registrant’s registered email address. The notice informed the Registrant of the date, time and venue of the hearing (virtual) and was sent to her within the prescribed 28-day period. The electronic link to attend the hearing was sent to the Registrant’s same email address on 14 February 2024. Having received advice from the Legal Assessor, the Panel was satisfied that the requirements as to service specified in the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 as amended (‘the Rules’) had been sufficiently met in the circumstances. Therefore, the Panel decided that there had been valid service of the notice of hearing.

Proceeding in Absence

2. Ms. Mosley applied for the hearing to be conducted in the absence of the Registrant and made submissions in support of that application. In doing so, she referred the Panel to the Registrant’s letter dated 10 February 2024, in which the Registrant informed the HCPC as follows: -

‘I am writing to say that this process of accusations is completely [sic] phony and unfounded. In my heart I’m being truly sincere when I say this. Please, don’t take this personally as it is not my intention to offend you nor anyone else. I am with this email informing you and the HCPC that I will not attend the final hearing.’

3. The Panel received advice from the Legal Assessor, who referred to rule 11 of the Rules, to Adeogba v GMC [2016] EWCA Civ 162, to Davies v HCPC [2016] EWHC 1593 (Admin) and to the HCPTS’s Practice Note, Proceeding in the Absence of the Registrant. He advised that as a general principle, a registrant who is facing a fitness to practise allegation has the right to be present and represented at a hearing and that in exercising the discretion to proceed in absence, the Panel must strike a balance between fairness to the Registrant and fairness to the wider public interest, ensuring that there is adequate focus on public protection. Fairness to the Registrant is of prime importance, but the overarching statutory objective of regulation is to protect the public.

4. The Panel was satisfied that in view of the Registrant’s stated intention not to attend the hearing as set out in her email of 10 February 2024, it was fair to proceed in her absence.

Background:

5. The Registrant is registered with the HCPC as a Speech and Language Therapist. She was employed by The Royal Devon and Exeter NHS Foundation Trust (‘the Trust’) as a Specialist Speech and Language Therapist in Head and Neck Cancer, from 4 August 2014 until 22 June 2021 when she resigned from her post.

6. A written referral was sent by email to the HCPC on 7 July 2021 by the Trust’s Head of Acute Therapy, raising concerns about the Registrant’s conduct regarding her work for the Royal Devon and Exeter Hospital (‘the Hospital’).

7. The first concern related to an incident on 5 October 2020. It was alleged that the Registrant had asked a newly qualified nurse to complete a swallow assessment on a patient who had undergone major head and neck surgery four days previously. It was alleged that the Registrant had asked the nurse to give the patient sips of water and look out for adverse signs such as coughing and ‘wet’ voice, but these would not have been present as they had an insensate larynx.

8. The second concern raised in the referral concerned events later in November 2020. It was alleged that the Registrant had not completed a full swallow assessment for a patient and that when this was raised with her she had stated that she had carried out the assessment but the new electronic record system had not worked properly when she recorded the assessment. However, investigation by her Line Manager showed that she had not accessed the record until after the incomplete swallow assessment had been raised with her and that she subsequently amended the record.

The Hearing:

9. The documents before the Panel included a main hearing bundle and two emails dated 7 November 2023 sent by the Registrant to Blake Morgan, solicitors instructed by the HCPC in this case. One of those emails included a written statement from the Registrant that addressed paragraph 1 of the particulars of the Allegation (at the time, paragraph 1 was in a slightly modified form). There were no other written representations to the HCPC provided by the Registrant, although the contemporaneous documents did contain statements made by the Registrant that were relevant to the Allegation.

10. The Panel heard oral evidence from two witnesses on behalf of the HCPC, namely: -

NH - a registered Speech and Language Therapist and Head of Speech and Language Therapy at the Trust;

MB-C - Lead Speech and Language Therapist for Ear, Nose and Throat at the Trust and the Registrant’s Line Manager at the relevant time.

11. NH gave evidence on the first day of the hearing and MB-C did so on the second day. Although no cross-examination of the witnesses took place, steps were taken by Ms Mosley to put to the witnesses points made by the Registrant in her emails of 7 November 2023 and the Panel and the Legal Assessor asked further questions of those witnesses to test their evidence, including points arising from statements made by the Registrant and recorded in the documents before the Panel.

12. Following the conclusion of MB-C’s evidence, Ms Mosley applied to amend paragraph 2 of the particulars of the Allegation in order to reflect the evidence given by NH and MB-C. The amendment proposed was as follows:-

‘2. On or around 12 November 2020 you retrospectively recorded a swallow assessment for normal fluids (Level 0) with Service User A that took place on 11 November 2020. In that when:

a) You did not undertake a swallow assessment for normal fluids (Level 0) for Service User A; and or

b) You recorded you had undertaken a swallow assessment for normal fluids for Service User A, when you had not undertaken such an assessment. You told your Line Manager that you had recorded a swallow assessment for normal fluids (Level 0) for Service User A on 11 November 2020 when you had not in fact done so.’

13. The Panel does have the power to amend the allegation at this stage of the hearing, i.e. after the evidence has been heard: PSA v HCPC & Doree [2017] EWCA Civ. 319 at [54]-[56]. The question was whether or not it was fair to do in order to avoid what would otherwise be ‘undercharging.’ The amendment would avoid potential undercharging that might well result if the Panel were to find that the Registrant had, contrary to paragraph 2 a) of the Allegation, carried out the assessment of Service User A (for normal fluids) but had failed to record it and had then lied to MB-C by stating that she had done so.

14. The Panel had in mind that a charge of dishonesty can end a practitioner’s career if proved and the jeopardy to the Registrant’s registration would be increased if the amendment were made. Further, the Registrant would have had no notice of the new charge or opportunity to respond to it and the allegation was never put to her by the Trust.

15. However, dishonesty has already been charged by the HCPC in the Allegation, with reference to the record made by the Registrant of her assessment of Service User A. The amendment proposed concerned that same record. It appears that the Registrant has at no stage responded specifically to the allegation of dishonesty made by the HCPC, other than the general denial of the entire Allegation in her letter of 10 February 2024. Although the Registrant has not had the opportunity to answer the amended charge, this is the result of her decision not to attend the hearing. The amendment proposed reflected the evidence of the two witnesses and no further questioning of those witnesses by the Panel or the Legal Assessor would have made any difference if this amendment had been made earlier. In all those circumstances, the Panel considered that it would be appropriate to allow the amendment and directed that the Allegation be amended accordingly. The remaining parts of the amendment (to the stem in particular) were purely clarificatory and no possible unfairness to the Registrant was caused by them.

16. Shortly before announcing its decision at the first stage of the hearing (as to the facts of the case and the question of statutory ground i.e. misconduct), the Panel informed Ms Mosley that having taken legal advice from the Legal Assessor, it proposed to further amend the Allegation by making a minor editorial amendment to paragraph 1; to indent with a subparagraph ‘a)’ the words in the first two lines of paragraph 1 that appear after ‘On 5 October 2020, you …’ The amendment reflected the Case Summary provided and Ms Mosley agreed that the amendment would be appropriate and the Panel therefore directed that the Allegation be further amended in this respect.

Decision on Facts:

17. The Panel heard oral submissions from Ms Mosley and took into account the written representations made by the Registrant. The Panel also received further advice from the Legal Assessor, which it accepted.

18. In making its findings, the Panel has borne in mind that the burden of proof rests with the HCPC and the standard of proof is the balance of probabilities. As to the most serious aspects of the Allegation, particularly the charge of dishonesty, the Panel directed itself in accordance with paragraphs [114] – [119] the judgment of Males LJ in Bank St Petersburg PJSC & Anr v Arkhangelsky [2020] EWCA Civ. 408 referring to in Re H (Minors) [1996] AC 563 and In re B (Children) [2008] UKHL 35, [2009] 1 AC 11.

19. A decision made in this case on 26 January 2024 at a preliminary hearing by another panel of the Conduct and Competence Committee had considered the fairness or otherwise of admitting into evidence a ‘DATIX’ report relevant to paragraph 1 of the Allegation. The panel ruled that the document should be admitted as hearsay evidence at this final hearing. Part of the Legal Assessor’s advice on the facts of the case referred to the approach that should be taken to deciding what weight to give to the statements recorded in that document by Colleague A in particular, who did not give oral evidence. The Panel directed itself in accordance with that advice.

'1. On 5 October 2020, you:

a) Did not obtain a sufficiently detailed history of Service User C before considering whether a swallow assessment was appropriate;’

20. On the morning of 5 October 2020 NH received a request from Otter Ward stating that Service User C needed to be seen to commence a trial of sips of water. Service User C’s Consultant was content from a surgical point of view and a Speech and Language Therapist was required to assess the service user’s ability to swallow before they could be started on water. The Registrant was the only head and neck Speech and Language Therapist available at that time. She was working from home and NH emailed her requesting that she contact Otter Ward to provide advice and guidance.

21. Approximately one hour and 20 minutes later that morning, the Registrant responded to NH by email, advising that Service User C was now on sips of water following a discussion with Staff Nurse Colleague A. The Registrant’s email went on to state, “staff made aware of signs of aspiration and Stop/NBM [nil by mouth] if concerns. Continue with NG [nasogastric tube] and mouth care.”

22. However, Colleague A did not act on the Registrant’s advice. She was concerned that the Registrant had asked her to take steps that were outside her clinical competence as a Staff Nurse. She raised her concerns with the Lead Nurse and as a result the DATIX report referred to in paragraph 19 above was completed by the Lead Nurse later on 5 October 2020. DATIX is a system to report incidents that require investigation in order to promote and protect patient safety.

23. The DATIX recorded the following: -.

‘ … Telephone call from SLT therapist that is currently absent from work to a newly qualified registered nurse on Otter Ward. … SLT therapist asked the nurse if she could complete a SLT assessment on a patient that is 4 days post op major head and neck surgery ( …., naso-labial flap and selective neck dissection).
Therapist informed the nurse that she is off work due to shielding/isolating and she suggested that the nurse should undertake a swallow assessment, for the patient to try minimal sips, check for aspirating. Nurse informed SLT therapist that this is not within her role nor is she trained to do this assessment on a high risk patient.’

24. NH was concerned that asking the nurse over the phone to give Service User C sips of water and then expecting the nurse to check if there were any signs of aspiration, such as coughing, was inappropriate. Those concerns were twofold. One concern related to the delegation of the task to Colleague A, which is considered below in relation to paragraph 1 b) of the Allegation. SH’s other concern was that it was not clinically appropriate for Service User C to try sips of water, as their larynx had no sensation as a result of the surgical procedure they had undergone. The instruction to ‘stop’ would not protect the patient, because their lack of sensation meant that they could aspirate (i.e. the liquid could go into their lungs) without any outward sign.

25. Having become aware of the incident, NH sent a further email to the Registrant on 5 October 2020 asking her to confirm what she had said to the nurse that morning. The Registrant replied by email, stating ‘I asked her if she was willing to provide the patient with a plastic cup with some water in it and give it to Service User C so that he could take a few sips. I also highlighted some red flags like coughing, wet voice and watery eyes post swallow.’ NH asked MB-C as the Registrant’s Line Manager to look into the matters raised by the DATIX. She met with the Registrant in person at the Hospital during the afternoon of 15 October 2020. MB-C discussed the issues raised by the DATIX and made a contemporaneous note of their conversation. Her note recorded the Registrant’s position, which was that she had not asked the nurse to do a swallow assessment. The note also recorded that MB-C asked the Registrant if she had obtained a history of the patient in terms of surgery and treatment that could impact on laryngeal movement and sensation before asking the nurse to do what she had asked of her. The note recorded that the Registrant said that she had not.

26. MB-C sent her record of their discussion to the Registrant for any comments shortly after their discussion. The Registrant made numerous additions and suggested amendments and returned a revised record of the discussion to MB-C. The amendments included the following statement, ‘ … the SN reported the patient had oral surgery to the [r]ight tongue, a NLF flap and right neck dissection.’

27. In one of her emails of 7 November 2023, the Registrant stated that she had relied on the nurse to provide a brief medical history as she could not access the patient’s medical notes. She also stated in the other email that, ‘shortly after [her] conversation with the nurse … , [she] ‘made contact with the Consultant in charge of .. Service User C … who was able to fill me in with the specifics (surgical procedures and medical history). [He] had been made aware of my recommendations and plan for the following day to which he was agreeable ..’

28. However, it is clear from an email written by the Registrant to that Consultant on 6 October 2020 that it was only at that point that she informed him of what she had recommended, stating –

‘Just to make you aware that yesterday I was working from home, .. I phoned the ward and spoke to one of the SN .. who was looking after [Service User C] asked her to provide the pt with some sips of water and to STOP if any signs of concerns: ie coughing post swallow etc.’

29. In the circumstances, the Panel has concluded that before making the recommendation to Colleague A, the Registrant did not obtain details of the patient’s history that she claimed to have obtained as set out in her revision of MB-C’s record of their discussion. In view of the patient’s recent medical history, those details of the history were necessary because the insensate larynx resulting from the recent surgical procedure was very relevant to the assessment of the patient’s ability to swallow that was proposed to the staff nurse. The Panel refers to the Registrant’s statement given on 7 November 2023. The Panel does accept that the Registrant did not have access to the patient’s notes and that it is likely that she spoke to the nurse about the patient. However, it is unlikely in the circumstances that the information she obtained from her included the details set out in the amended note of the Registrant’s conversation with MB-C.

30. The Panel accepted from the evidence that in its technical sense a ‘swallow assessment’ involves a number of steps, including a clinical examination of the patient’s tongue health and movement as well as basic oral motor skills. To that extent, the Panel accepted the Registrant’s position that what she had asked the staff nurse to do was not a ‘swallow assessment’ in the technical sense. However, the Panel was satisfied that the steps proposed by the Registrant amounted to an assessment of the patient’s ability to swallow safely by sipping water with the nurse being required to make a clinical decision whether or not there were signs of aspiration. As such, the substance of what the Registrant proposed was an assessment of the patient’s swallowing and as such fell within paragraph 1 a) of the Allegation.

31. In the circumstances, the Panel found paragraph 1 a) of the Allegation to have been proved.

‘b) Instructed Colleague A to conduct a swallow assessment on Service User C, when it was not appropriate to do so:

i. In that, it was your responsibility in your role as a Speech and Language Therapist to conduct such assessments;’

32. The Panel was satisfied that the Registrant did instruct Colleague A to give Service User C sips of water and to stop doing so if there were signs of aspiration such as coughing.

33. The Panel refers to the issue of the delegation of the assessment to Colleague A, in paragraph 1 b) i. of the Allegation. The Panel accepted the evidence of NH and MB-C on this issue and has concluded that only staff who had completed the relevant training and achieved the required competencies should undertake work for which they have been trained and are competent to carry out. The staff nurses on this particular ward did not undertake swallow screens or swallow assessments due to the complex nature of patients’ conditions.

34. The essence of the assessment that the Registrant instructed the nurse to carry out was to exercise a clinical judgment as to whether or not the patient could swallow safely. That was a matter that fell within the training and competence of the Registrant, as a Speech and Language Therapist and, in the circumstances of this case, was outside the training and competence of Colleague A as a nurse. It was also inappropriate to have done so, because an assessment of a patient’s ability to swallow safely should be carried out by the Speech and Language Therapist in physical attendance on the patient.

35. Therefore, paragraph 1 b) i) has been found proved.

‘ii In light of Service User C's history.’

36. In view of the insensate nature of the patient’s larynx resulting from their recent medical history, the instruction given by the Registrant to assess Service User C’s ability to swallow safely was clinically inappropriate. As set out above, the instruction to ‘stop’ would not protect the patient, because their lack of sensation meant that they could aspirate without any outward sign. Rather, the Registrant should have kept the patient ‘nil by mouth’ until the following day, when she could have seen them on the ward.

37. In her statement of 7 November 2023, the Registrant stated that, ‘In hindsight, I accept the fact that my suggestion was wrongfully issued in relation to the patient’s circumstances, …’

38. In those circumstances, the Panel has found paragraph 1b) ii to have been proved.

‘2) On or around 12 November 2020 you retrospectively recorded a swallow assessment for normal fluids (Level 0) with Service User A that took place on 11 November 2020 when:

a) You did not undertake a swallow assessment for normal fluids (Level 0) for Service User A; and’

39. On 11 November 2020 the Registrant saw Service User A, who had a right vocal cord palsy, which means that the right vocal fold was paralysed. This compromises a patient’s ability to close off their trachea when swallowing and to cough and prevent any food or drink from entering the lungs, so reducing their ability to swallow safely.

40. CM, the Clinical Lead of Head & Neck Cancer, alerted MB-C and NH by email that she was not sure if this patient had been tested with water as part of the swallow assessment carried out by the Registrant on that day. The reason why she raised this was because there was nothing in the patient’s notes to show that they had been tested in this way. Water is referred to as ‘Level 0’ for the purposes of marking liquid consistency.

41. As a result, MB-C (with CM) looked at the notes on the system. At the time, this was a very new digital record system (called ‘EPIC’) that had replaced the previous paper-based records and it had gone live at the Hospital on 9 October 2020.

42. There were two areas where a Speech and Language Therapist could add clinical information. The first was a flowsheet made up of checkboxes. There was also a section for notes, for medical or ‘progress notes’. When M-BC looked at the records, where it should have stated that the patient had been trialled with water, it merely referred to ‘biscuit and banana’ and a recommendation that the patient could have a normal diet.

43. At 09:25 on 12 November 2020, MB-C emailed the Registrant with regard to that patient and in that email she stated as follows: -

‘I noticed from the swallow ax [assessment] documentation that she was not assessed with liquids. Since normal liquids are usually the riskier texture for pts with VF palsy/incomplete adduction, would you be able to see her this morning to check she is safe to swallow normal liquids?’

At 09:39:53 the Registrant responded by email, stating –

‘Thank you for your email. As a matter of fact Service User A was also Ax with Level 0 fluids, but the info did not self populate onto the Pt's progress note. Just to reassure you I have now amended the Pt's clinical note with an addendum.’

44. Print-outs from EPIC for 11 and 12 November 2020 in relation to Service User A were in evidence before the Panel. These included the ‘revision history’ of the flowsheet. These documents showed that shortly before she wrote that email to MB-C, the Registrant did record ‘Level 0’ on the flowsheet with the same addition appearing in the progress notes, to show that the swallow assessment she had carried out had included that element.

45. The Panel accepted the oral evidence of MB-C as to the absence of any reference to an assessment for liquids when she looked at the electronic record on 11 November 2020 after the Registrant had seen the patient that day. That evidence was corroborated by the revision history of the flowsheet that also showed that the first reference to an assessment for liquids was made on 12 November 2020. The copy of the progress note for that date that was before the Panel also contained no such reference.

46. In those circumstances, the Panel has concluded that the stem of paragraph 2 has been proved. The Registrant did retrospectively record a swallow assessment for normal fluids (Level 0) that took place on 11 November 2020. She did so on 12 November 2020.

47. The position of MB-C and NH in their respective witness statements (in the case of NH, her first of the two she gave) was that they did not know whether or not the Registrant had carried out the assessment. Ms Mosley submitted that in all the circumstances it was likely that the Registrant had not done so.

48. The Panel refers to its finding that the entries on the flowsheet (and the progress notes) made on 11 November 2020 contained no reference to ‘Level 0’ or to any other information showing that the patient had been assessed for swallowing on that date in relation to liquids. However, although the absence of such a record might indicate that this part of the assessment had not been carried out, it might equally indicate that the assessment had been done but had not been recorded.

49. In the circumstances, the Panel considers that it was inherently improbable that the Registrant would have carried out the swallow assessment of this patient by assessing their ability to swallow food but not to have assessed their ability to swallow water.

50. In those circumstances, the Panel was not persuaded that it is more likely than not that the Registrant failed to carry out this part of the assessment.

51. Therefore, the Panel found the stem of paragraph 2 to have been proved but sub-paragraph 2 a) to have been not proved.

‘b) You told your Line Manager that you had recorded a swallow assessment for normal fluids (Level 0) for Service User A on 11 November 2020 when you had not in fact done so.’

52. The possibility that the Registrant did carry out the assessment as to liquids but had not recorded it is raised by paragraph 2 b) of the Allegation.

53. It is clear from the Registrant’s email of 12 November 2020 that she did inform MB-C, her Line Manager, that she had carried out the assessment.

54. In view of the Panel’s finding as to the state of the flowsheet (and the progress notes) on 11 November 2020, it is clear that the Registrant did not record a swallow assessment for normal fluids.

55. Therefore, paragraph 2 b) of the Allegation has been found proved.

‘3. Your conduct in relation to particular 2 was dishonest’

56. The correct approach to dishonesty in law was authoritatively stated by the Supreme Court in Ivey v Genting [2017] UKSC 67. Lord Hughes, giving the judgment of the court, stated at [74] –

‘…. When dishonesty is in question the fact-finding tribunal must first ascertain (subjectively) the actual state of the individual’s knowledge or belief as to the facts. The reasonableness or otherwise of his belief is a matter of evidence (often in practice determinative) going to whether he held the belief, but it is not an additional requirement that his belief must be reasonable; the question is whether it is genuinely held. When once his actual state of mind as to knowledge or belief as to facts is established, the question whether his conduct was honest or dishonest is to be determined by the fact-finder by applying the (objective) standards of ordinary decent people. There is no requirement that the defendant must appreciate that what he has done is, by those standards, dishonest.’

57. In view of the Panel’s finding that paragraph 2 a) was not proved, paragraph 3 must fail insofar as it is alleged that the Registrant was dishonest with respect to paragraph 2 a).

58. Therefore, the Panel has considered whether or not the Registrant acted dishonestly in relation to 2 b), because she told her Line Manager that she had recorded a swallow assessment for normal fluids (Level 0) when she had not in fact done so, as set out in her email of 12 November 2020.

59. The Panel first considered the actual state of the Registrant’s knowledge or belief as to the facts.

60. The circumstances were that the new EPIC system that had gone ‘live’ in the Hospital on 9 October 2020 had suffered from a number of glitches, albeit there was no evidence that there had been a particular problem with information being populated from one part of the record to the other. The Registrant had experienced particular difficulties operating the new record-keeping system when she had been given training on the new system and she had had to re-do her training in view of her difficulties. Neither MB-C nor NH were technically qualified to give an opinion on the technicalities of the EPIC system and as to its performance following its roll-out at the Hospital.

61. The Panel has concluded that the explanation given by the Registrant in her email of 12 November 2020 for the absence of a record of an assessment (for normal fluids) was incorrect.

62. However, the Panel was not satisfied that the Registrant had intended to mislead MB-C by giving the explanation that she put forward. The Panel has concluded that in the circumstances the explanation represented an honest and sincere belief that the Registrant had attempted to record the assessment that she did carry out for both food and liquids and that she genuinely thought she had recorded that part of the assessment but had not in fact done so.

63. Such being the Registrant’s state of mind as to her knowledge or belief as to the facts, her conduct was honest and not dishonest, applying the (objective) standards of ordinary decent people.

64. Therefore, the Panel has found paragraph 3 to have been not proved.

Decision on Grounds:

65. Ms Mosley submitted that the behaviour outlined in the factual particulars amounts to misconduct in the statutory sense, constituting a serious falling short of what would be proper in the circumstances.

66. The Panel has directed itself in accordance with the advice from the Legal Assessor. In summary, the facts so far proved will amount to the statutory ground of misconduct if they establish conduct that fell short of what would have been proper in the circumstances, including the requirements of rules and standards ordinarily required to be followed and if, in context, the conduct was sufficiently serious: see Roylance v GMC [2000] 1 AC 311, Nandi v GMC [2004] EWHC 2317 (Admin). In the case of clinical misconduct, a single incident may amount to misconduct if the conduct is particularly grave Calhaem v GMC [2007] EWHC 2606 (Admin) at [39] and Meadow v GMC [2006] EWCA Civ. 1390 at [201].

67. The Panel refers to its finding that paragraph 1 of the Allegation was found proved. The Registrant failed to take a proper medical history for a patient who had an insensate larynx when considering the appropriateness of her proposed method of assessment of the patient’s ability to swallow water. She then instructed Colleague A, a newly qualified staff nurse, to carry out that procedure, which involved sips of water and watching for signs of aspiration.

68. However, the procedure created a risk to the patient of developing pneumonia as a result of aspiration, i.e. bacteria from the mouth passing into the lungs with saliva, if the water ‘went down the wrong way’. The Panel is aware that Service User C did in fact develop pneumonia the following day, which is some indication of the risks that would have accompanied the Registrant’s proposed course of action.

69. The delegation to the nurse was inappropriate, because any assessment of the patient’s ability to swallow liquid safely should have been done by the Registrant. The Registrant’s instruction to Colleague A placed her in the position that had she complied with it, the nurse would have carried out a procedure that carried a risk of harm to the patient, in circumstances where it appears that the patient would have developed pneumonia (as they did), so leaving the nurse open to criticism for having carried out the assessment when it created a risk of aspiration.

70. In view of the facts found proved and in the circumstances set out in paragraphs 67-69 above, the Registrant has failed to comply with the following requirements set out in the HCPC’s Standards of Conduct, Performance and Ethics (‘the Standards’), namely: -

4.1 You must only delegate work to someone who has the knowledge, skills and experience needed to carry it out safely and effectively.

6.1 You must take all reasonable steps to reduce the risk of harm to service users, …. and colleagues as far as possible.

6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user …. at unacceptable risk.

71. The Registrant’s conduct found proved under paragraph 1 of the Allegation fell far short of what was proper in the circumstances, was serious and particularly grave and as such constituted statutory misconduct.

72. The Panel refers to its findings that the stem of paragraph 2 and subparagraph 2 b) were proved. The Panel has in mind Standard 10 of the Standards, which requires the prompt keeping of clear and accurate records. The Panel was not satisfied that these findings crossed the threshold of seriousness so as to amount to statutory misconduct for the following reasons. It is true that a record of the assessment for normal liquids should have been made on 11 November 2020, but in view of the Panel’s findings under paragraphs 2 b) and 3, the Registrant’s failure to record the assessment on the day was not blameworthy. She did try to make a note on what was a new system that had ‘teething’ problems and which she had found difficult to use. She made a note the following day. Although she did not identify it as a back-dated note, as she should have done, the absence of such identification has not been charged in the Allegation, and even if it had been, would not have justified a finding of statutory misconduct with respect to that single note.

Decision on Impairment:

73. Having found that the facts proved under paragraph 1 of the Allegation amounted to misconduct, the Panel went on to decide whether or not the Registrant’s fitness to practise is currently impaired.

74. Ms. Mosley referred the Panel to relevant case law and to the HCPTS’s Practice Note ‘Fitness to Practise Impairment’; in particular, to the personal and public components set out within the note. Ms. Mosley submitted that the Registrant’s fitness to practise is currently impaired by reference to both components.

75. The Panel received further advice from the Legal Assessor, which it has accepted.

76. The Panel considered first the personal component of current impairment. In doing so, it addressed the following questions: -

• Is the misconduct remediable?
• has the Registrant taken remedial action?
• Is the misconduct likely to be repeated?

77. The misconduct concerned the Registrant’s conduct in relation to clinical aspects of work as a Speech and Language Therapist. As such, the misconduct is capable of remediation.

78. In her statement of 7 November 2023, the Registrant acknowledged that ‘in hindsight’ her instruction to Colleague A was not clinically appropriate for Service User C and that she was incorrect to have assumed that Colleague A was suitably qualified to carry out the task she gave to Colleague A without having asked her.

79. MB-C’s evidence (accepted by the Panel) was that in her discussion with the Registrant on 15 October 2020, the Registrant had focused on denying that the task she had given to the nurse was a swallow assessment and did not accept that there would have been a risk to the patient, even though the patient developed pneumonia the next day. Her note of the conversation as amended by the Registrant was that the Registrant had ‘said she would not necessarily have done anything differently because she did not ask [Colleague A] to do a full swallow assessment’ (amendment in bold). The Panel also accepted MB-C’s evidence that the Registrant had failed to provide any reflection on having instructed the nurse to carry out a task that was beyond the latter’s professional remit, again maintaining that it was not a swallow assessment.

80. The Panel has concluded that such insight as has been shown by the Registrant in her statement of 7 November 2023 falls well short of an understanding of the inappropriate nature of the task that she had delegated to Colleague A. That reflection is based on hindsight, whereas it should have been clear to the Registrant at the time that the task was not only clinically inappropriate (looking for signs of aspiration would not work on a patient with an insensate larynx) but potentially dangerous for the patient. It should also have been apparent to her at the time that she was also placing a colleague, namely Colleague A, in a very difficult position professionally by asking her to carry out a procedure on the patient that she was not qualified to perform, and that in addition she was tasking the nurse to act in a manner that carried risk to the patient.

81. The insight shown by the Registrant is therefore very limited. In addition, she has provided no evidence as to what, if any, Continuing Professional Development (CPD) she has undertaken and no written reflection on her clinical practice since her resignation from the Trust in June 2021.

82. In those circumstances, the Panel has concluded that the Registrant has taken no significant action to remedy the misconduct. Accordingly, there is a risk that the misconduct would be repeated.

83. Therefore, the Registrant’s fitness to practise is impaired by reference to the personal component.

84. The first part of the public component of impairment consists of the need to protect service users. This overlaps with the personal component and is therefore met in this case.

85. The Panel went on to consider the other aspects of the wider public interest. In CHRE v NMC & Grant [2011] EWHC 927 (Admin) Cox J. stated the following at paragraph 76 of her judgment: -

’76. I would also add the following observations in this case having heard submissions, principally from Ms McDonald, as to the helpful and comprehensive approach to determining this issue formulated by Dame Janet Smith in her Fifth Report from Shipman, referred to above. At paragraph 25.67 she identified the following as an appropriate test for panels considering impairment of a doctor's fitness to practise, but in my view the test would be equally applicable to other practitioners governed by different regulatory schemes.

"Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession; and/or

d. has in the past acted dishonestly and/or is liable to act dishonestly in the future.
…………..”

86. The Registrant’s actions did place a patient, namely Service User C, at unwarranted risk of harm for the reasons set out in the Panel’s conclusions on the issue of statutory misconduct. In view of the risk of repetition of the misconduct, the Registrant is liable to place patients at unwarranted risk of harm in the future.

87. In view of the nature, circumstances and gravity of the misconduct, the Registrant has brought the profession of Speech and Language Therapy into disrepute. Further, she is liable to do so in the future in view of the risk of repetition.

88. The Registrant has also breached one of the fundamental tenets of the profession embodied in Standard 6, by placing the health and safety of a patient at unacceptable risk. In view of the risk of repetition, the Registrant is liable to act in further breach of that fundamental requirement of registered practitioners by placing patients at unacceptable risk of harm in the future.

89. In all those circumstances, a finding of impaired fitness to practise is required by reference to the public component so as to maintain public confidence in the profession and to declare and uphold proper professional standards of practice.

90. For those reasons, the Panel has decided that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction:

91. Ms Mosley informed the Panel that there was no other fitness to practise history with respect to the Registrant. She referred to the HCPC’s Sanctions Policy, March 2019 (‘SP’) and to the purpose of sanctions and invited the Panel to consider each available sanction in ascending order of seriousness, drawing attention to aggravating and mitigating factors. She did not advocate any particular sanction.

92. The Panel received advice from the Legal Assessor on the issue of sanction, which it has accepted.

93. The Panel has taken into account the relevant parts of the SP in reaching its decision, its earlier findings and conclusions and all the evidence so far as relevant at this stage. The Panel has also taken into account all facts and matters tending to favour the Registrant.

94. The primary function of any sanction is to protect the public and the wider public interest. Sanctions are not intended to punish registrants, but instead to ensure that the public is protected. Inevitably, a sanction may be punitive in effect, but should not be imposed simply for that purpose. In deciding what, if any, sanction to impose, a panel is required to apply the principle of proportionality and in doing so to bear in mind the potential effect of a sanction on a registrant.

95. The protection of the public includes protection against any risks a registrant might pose to those who use or need their services, the need to maintain public confidence in the profession and its regulation, the importance of upholding proper standards of conduct among members of the profession, and the role of sanctions in creating an appropriate deterrent effect on other registrants.

96. The Panel first considered the aggravating and mitigating factors in its assessment of the assessment of the gravity of the misconduct.

97. The aggravating factors were these: -

• the Registrant has shown very limited insight;
• she has taken no meaningful steps in remediation of the misconduct;
• she has neither apologised nor shown remorse for the misconduct;
• her misconduct created a risk of harm to a patient.

98. The Panel considered the following to be mitigating factors: -

• the incident was isolated;
• the Registrant was working from home and therefore could not access the patient’s medical records or attend on the patient at the Hospital;
• she was suffering from stress at the time;
• no actual harm was caused to the patient.

99. In making an overall assessment of the seriousness of the misconduct, the Panel has concluded that the Registrant has been culpable of conduct that brought the profession into disrepute and breached a fundamental tenet of the profession, placing a service user at risk of serious harm. She has taken no steps to address the misconduct and there is a real risk of its repetition. All these findings have been set out in further detail in the Panel’s decision on the issues of misconduct and current impairment.

100. In its consideration of the issue of sanction, the Panel addressed the following outcomes in ascending order of seriousness.

101. To take ‘no action’ would be a wholly inappropriate response to the impairment in view of the seriousness of the misconduct and the risk of repetition.

102. The next available sanction is a caution order. The SP states (paragraph 102) that a caution order is likely to be an appropriate sanction for cases in which the issue is isolated, limited, or relatively minor in nature, there is a low risk of repetition, the registrant has shown good insight; and has undertaken appropriate remediation.

103. None of those elements is present in this case. Most importantly, the sanction of a caution would not protect the public from the risk of repetition of the misconduct.

104. The Panel next considered conditions of practice. Workable conditions of practice could be formulated to address the misconduct. However, the SP (paragraph 107) states: -

‘Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so. Therefore, conditions of practice are unlikely to be suitable in cases in which the registrant has failed to engage with the fitness to practise process or ….’.

105. Any conditions would require the Registrant’s engagement and co-operation so that she would take steps specified in the conditions of practice to address and remediate the shortcomings in her clinical practice, such as working with a Workplace Supervisor. In view of the Registrant’s lack of engagement with these proceedings, the Panel cannot be confident that the Registrant would comply with conditions of practice.

106. Therefore, a conditions of practice order would not be an adequate response to the impairment.

107. The next available sanction is suspension, for a maximum period of 12 months.

108. A suspension order would provide public protection against the risk of repetition and adequately mark the gravity of the misconduct. It would also give the Registrant the opportunity of reflecting on the Panel’s findings and persuading a panel reviewing her case that a repetition of the misconduct would be unlikely, so that she could return to practice if her fitness to practise were no longer impaired. The Panel considers this to be an appropriate opportunity to grant to the Registrant, bearing in mind that her misconduct took place on an isolated occasion, that she has an otherwise clear fitness to practise record and no actual harm was caused to the patient.

109. The Panel is aware that even a short period of suspension may result in the termination of a registrant’s employment and that, more generally, a period of suspension may have adverse financial effects on a practitioner. The Panel is not aware of the Registrant’s current professional circumstances. However, a period of suspension is necessary to protect service users from the risk of a repetition of the misconduct.

110. The Panel is required to determine a period of suspension that is necessary and proportionate in the circumstances. It has concluded that a period of five months is sufficient for the Registrant to take the necessary remedial action in response to her misconduct. That period of suspension is also adequate to mark the gravity of the misconduct in all the circumstances.

111. In considering whether or not a suspension order would be a sufficient and proportionate sanction, the Panel did also consider whether a striking off order would be the appropriate sanction in the circumstances. The Panel took into account the matters set out in the SP that address a striking off order (paragraphs 127 – 131). The Panel considered that it would be incorrect to conclude at this stage that the Registrant is unwilling to resolve matters (paragraph 131) despite her failure to date to engage with the fitness to practise process. In the circumstances of this case, the Registrant’s removal from the profession for five years would be unnecessary and disproportionate. Therefore, the Panel decided that a striking off order would be inappropriate.

112. Therefore, the Panel has decided to impose a suspension order for a period of five months.

113. The Panel considered that the reviewing panel may be assisted by the following:

• The Registrant’s attendance at the hearing;
• A written reflection from the Registrant regarding this Panel’s findings;
• Evidence of remediation including any training or CPD focused on the misconduct found proved;
• Any testimonials from work colleagues (from either paid or unpaid work).

That the Registrar is directed to suspend the registration of Ms Stefania Antonucci for a period of 5 months, from the date this order comes into effect.

Right of Appeal:
You may appeal to the High Court in England and Wales against the Panel’s decision and the order it has made against you.

Under Article 29(10) of the Health Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

Interim Order Application:

Application

1. Ms Mosley applied for an interim suspension order of 18 months on the grounds that such an order is necessary to protect members of the public and is otherwise in the public interest. In the first instance, she applied for the application to be heard in the absence of the Registrant.

2. The Legal Assessor advised that although the Registrant was not given notice of the application in the notice of hearing, it was fair to proceed in her absence. In view of the Panel’s earlier finding, she had decided not to attend the hearing and had she done so, would have been given a proper opportunity to respond to the application. Therefore, it was fair to proceed in her absence.

3. The Panel decided that it was fair to determine the application in the absence of the Registrant.

Decision:

4. By Art 31(1), (2) Health Professions Order 2001 (as amended), the Panel has the power to impose an interim conditions of practice order or interim suspension order, for a maximum period of 18 months. The legislation has been drafted so that an order of suspension does not take effect immediately; but 28 days after service of the order and if a registrant appeals, any interim order that is imposed will continue until after disposal of the appeal.

5. Thus, the Panel was aware that any interim order in this case would potentially last much longer than the substantive order of five months, in view of the time it takes for an appeal to be heard. The Panel also took into account the context in which the interim order was sought, that is, after a final hearing in the case, as opposed to in advance of it.

6. In view of the findings made by the Panel at the earlier stages of the hearing, it was satisfied that there is a real risk of harm to the health, safety or wellbeing of service users if an interim order were not made.

7. In view of the findings the Panel has made on the issues of impairment (as to the public component) and sanction (the gravity of the misconduct), the Panel considered that public confidence in the profession would likely be seriously damaged if the Registrant were to continue to hold unrestricted registration in the interim period before disposal of any appeal, should she decide to appeal.

8. There must be good and sufficient reasons to impose an interim order. The Panel has conducted a balancing exercise, balancing the need for protecting the public and the wider public interest against the consequences that an interim order could have on the Registrant.

9. However, the Panel concluded that an interim order is required.

10. For the same reasons as those in the Panel’s decision on sanction regarding the inappropriateness of conditions, interim conditions of practice would not adequately address the risk of a repetition of the Registrant’s misconduct to members of the public.

11. An interim suspension order is therefore necessary in the circumstances of this case to protect members of the public and is otherwise in the public interest.

12. In view of the likely time for the disposal of any appeal, the Panel decided to impose an Interim Suspension Order of 18 months.

13. During Ms Mosley’s application to proceed in the absence of the Registrant, the Hearings Officer informed the Panel that although notice of a possible application was not included in the Notice of Hearing, that notice of such an application had been sent to the Registrant in an electronic link embedded in the Notice. After the decision to impose an Interim Suspension Order of 18 months had been announced, the Hearings Officer informed the Panel that he had checked and discovered that the relevant Fact Sheet had not been included in the documents accessible by the link. The Panel did not consider it necessary to reconvene the hearing because it was content with the Legal Assessor’s advice as forming a sufficient basis for the decision it had made to proceed in the Registrant’s absence. In the circumstances, the Panel saw no reason to reconsider the decision it had made to impose an Interim Suspension Order of 18 months.

Interim Suspension 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 Stefania Antonucci