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Allegations (as amended at Final Hearing):
During the course of your practice as an Occupational Therapist at Somerset Partnership NHS Foundation Trust, between November 2010 and November 2012:
1. You did not communicate effectively with colleagues, including:
a) On or around 11 February 2011, your line of questioning and/or tone used to another member of staff was aggressive;
b) on 09 Feb (sic) 2012, whilst attending a meeting with colleagues/line management you
(i) used an aggressive tone;
(ii) shouted at colleagues;
(iii) did not show respect for the views of others
c) on 23 May 2012, you swore at a colleague following an incident where a service user had been distressed during a cooking session you facilitated;
d) on 08 June 2012, you told a colleague that you felt like "slapping" another colleague across the face after that individual had raised concerns about you;
e) in or around June 2012 you verbally assaulted colleagues following observations they made of your service user interventions;
2. You did not communicate effectively with service users, including:
a) on 12 September 2012, your communication style resulted in a service user deciding that he did not want to have any further one to one sessions with you;
b) on 19 September 2012, several references were made on a draft serious untoward event report, that a service user found your interventions "distressing";
c) you have been unable to understand and/or recognise service users lines of thinking and/or feelings, including;
(i) on 17 May 2011 you facilitated a running session with a service user that ended in a disagreement, resulting in the service user refusing to undertake further work with you;
(ii) on 23 May 2012, a service user became distressed following an altercation with you which then necessitated the service user receiving a verbal de-escalation from another member of staff;
d) you did not adapt your communication style to meet the needs of service users, including:
(i) on 05 September 2012, during an open coffee morning with service users you asked service users questions, which potentially distracted them.
3. You did consistently not produce clear and accurate reports and/or service user notes, including:
a) on 11 May 2012 you drafted and uploaded a report on the Trust's RIO system that contained third party information without adequate referencing;
b) in the report dated 11 May 2012 you made interpretations that were not evidence-based and often conjecture;
4. You did not demonstrate an awareness of risk, including:
a) on 08 May 2012 and/or 09 May 2012 you were on work premises unaccompanied after your scheduled working hours, despite being informed not to do so.
5. Your actions described in paragraphs 1-4 amount to a lack of competence and/or misconduct.
6. By reason of your lack of competence and/or misconduct your fitness to practise is impaired.
1. The Panel had regard to the Notice of Service, dated 16 March 2015, contained in the core bundle. It was sent to the Registrant’s registered address. It is plain, from the contents of the emails sent by the Registrant on 16 March 2015 and 08 April 2015, that she is aware of the date of the hearing and that, by inference, she has received the requisite documents. Therefore, the Panel was satisfied that the rules had been complied with and that the Registrant had duly received proper notification.
Proceeding in absence of the Registrant:
2. The Panel heard the submissions of Mr Corrie to proceed in the Registrant’s absence. It has accepted the advice of the Legal Assessor and paid due regard to the HCPC’s Practice Note on ‘Proceeding in the Absence of the Registrant’.
3. By the Registrant’s own admission that she “will not be engaging in this process in any way” (per email of 08.04.2015), it is obvious to the Panel that she has never entertained any desire to attend this hearing.
4. The Panel recognises that these are serious matters that must be dealt with expeditiously. The Registrant has made no request to adjourn and has voluntary absented herself.
5. In view of the above, the Panel regarded it to be in public interest for the hearing to proceed in the Registrant’s absence.
Amendments to allegations:
6. At the outset of proceedings, Mr Corrie made an unopposed application to amend the allegation. Notice had been given to the Registrant in relation to most of the proposed amendments in a letter from the HCPC of 17 March 2015 to her registered address. Additionally, oral representations were made to the Panel to change some dates and improve grammar in order to make things clearer. By the nature of the timing and the absence of the Registrant, no notice of these were given to the Registrant.
7. The Panel agreed with the contention that these proposed amendments related to form rather than substance and took the view that no prejudice would be caused to the Registrant by the granting of these applications. There was no attempt to change the focus of the alleged underlying mischief and the amendments, in the Panel’s view, would better align the detail of the allegations with the contents of the witness statements that had already been disclosed to the Registrant.
8. The Panel, in considering this application with care and in accepting the advice of the Legal Assessor, determined that it was in the public interest to amend the allegation accordingly.
9. The Registrant was employed by the Somerset Partnership NHS Trust from November 2010 to October 2012 as a Band 5 Occupational Therapist on Ash Ward, a twelve bed low secure in-patient recovery and rehabilitation unit for males with mental health difficulties. The service users on the ward were all detained under the Mental Health Act and had a known risk history. As a group they suffered enduring mental health problems such as schizophrenia, personality disorders and complex needs.
10. The Registrant’s role was to be responsible for assessing and treating these service users. She was expected to provide intervention to patients through the provision and supervision of therapeutic activities, under the supervision of CT (Clinical Supervisor).
11. The HCPC’s case consists of allegations in relation to the Registrant’s failure to communicate effectively with colleagues (Particular 1), service users (Particular 2), her failure to produce clear and accurate reports (Particular 3) and her inability to demonstrate her awareness of risk (Particular 4).
12. In September 2012, such were the concerns about the performance and capability of the Registrant that her service manager concluded it was unsafe to permit her to practise on the ward without constant supervision and the supervision required to ensure her safety and that of her colleagues was unsustainable. The Registrant was consequently suspended from work on the 01 October 2012 and she resigned three weeks later.
Decision on Facts:
13. The Panel heard oral evidence from four witnesses called by the HCPC, as follows:
• CT, at the time a Specialist Occupational Therapist Professional Leader for Child and Adolescent Mental Health Services (CAMHS) Occupational Therapy and the Registrant’s Clinical Supervisor.
• CR, the Ward Manager of Ash Ward and the Registrant’s Line Manager at the time.
• AP, a Band 6 Senior Occupational Therapist who shared an office with the Registrant.
• KD, another Band 6 Occupational Therapist who was asked to conduct an assessment of the Registrant’s work.
14. The Panel has considered all of the oral and documentary evidence placed before it. It paid particular care to the submissions of Mr Corrie and has accepted the advice of the Legal Assessor.
15. In relation to the facts the Panel has reminded itself that the burden of proof rests throughout on the HCPC and that the required standard is the civil one – on the balance of probabilities.
16. Throughout its deliberations the Panel has been conscious that there has been no evidence from the Registrant herself but has nonetheless been scrupulous in asking questions of the live witnesses that could have elicited answers favourable to the Registrant’s cause.
17. The Panel took the view that the four witnesses who attended gave measured and credible testimony.
19. Looking at the particulars one by one the Panel has determined as follows.
20. Particular 1a) Proved – After the evidence of AP was concluded Mr Corrie applied to amend this particular by adding the words “or around” before the words “15 February 2011”, and to change the date to “11 February 2011”. For the same reasons as given above for allowing the earlier applications to amend, the Panel granted this application. The Panel found the eye-witness evidence of AP to most helpful in regard to this particular. She had been present on 11 February 2011 during an informal meeting between the Registrant and a colleague to discuss induction policy for gymnasium users. She described how the Registrant had become “louder as she became more angry” adding that she was “spitting venom” as she “launched a [verbal] attack” on the colleague in a “bullying manner”. The Registrant was described as firing long questions “like bullets coming out of her mouth”. All of this was over a routine working matter. The Panel found this evidence compelling and were thus satisfied that this particular is proved.
21. Particular 1b) i) Proved - The Panel considered the witness statement of CT, expanded upon during her verbal evidence. She stated that the Registrant “was aggressive in her tone and manner” and had been “banging on the table”. On the basis of this evidence the Panel was satisfied that the Registrant has used an aggressive tone during the meeting on the 09 February 2012.
22. Particular 1 b) ii) Proved – Again the Panel referred to the witness statement of CT which stated that the Registrant “shouted on several occasions” during the meeting on 09 February 2012. In oral evidence CT added that “people asked in other rooms if everything was okay” because of the Registrant’s shouting. On this basis, the Panel was satisfied that the Registrant had shouted at colleagues during the meeting on 09 February 2012.
23. Particular 1b) iii) Proved – CT stated that both during the meeting on 09 February 2012 and at other times it was a “common thing for Emma [the Registrant] to be disrespectful to other professionals especially nurses”. She informed the Panel that the Registrant “made derogatory remarks about nurses and managers, not recognising seniority or the specialist skills of others”. On this basis the panel was satisfied that the Registrant did not show respect for the views of others during the meeting on 09 February 2012.
24. Particular 1 c) Proved – In an email of 29 May 2012, KG (a member of the nursing staff) described how she had observed six days earlier a nursing assistant being sworn at by the Registrant. The words used were “If you think that I’m thick, I’m going to **** off upstairs”. On this basis the Panel was satisfied that the Registrant had sworn at a colleague.
25. Particular 1 d) Proved – CT, in her witness statement, observed that on 08 June 2012, during a supervision session, she and the Registrant discussed concerns raised by Dr B, (a Consultant Clinical Psychologist) in relation to written reports produced by the Registrant. This was in particular regard to alleged inadequacies in how the Registrant was recording third party information. At this point the Registrant became angry and said to CT that “she felt like slapping her [Dr B across the face”. The Panel was satisfied that this particular was proved.
26. Particular 1e) Proved. The witness statement of CT stated that, in June 2012, the Registrant had made her aware that, when colleagues had provided feedback to her, her interventions with a service user were causing him distress, she had become “upset by this and swore at these colleagues, then left the room angrily”. The Panel was satisfied that CT’s account was accurate and, on this basis, that the particular was made out in that the Registrant’s words and actions amounted to a verbal assault.
27. Particular 2 a) Proved – In his witness statement, CR observed that a Ward Advocate, acting on behalf of a service user, had brought to CR’s attention that the service user did not want to have any more one-to-one sessions with the Registrant. This was because the service user found the Registrant’s “interventions distressing and he wanted another staff member to be present at any future one-to-one meeting between [the Registrant] and him”. The same statement went on to provide the explanation that the underlying problem was the Registrant’s communication style which, CR explained in his verbal evidence, was “too intense and too probing”. On this basis the Panel find this particular proved.
28. Particular 2b) Not proved – The draft Serious Untoward Event Report was not produced in evidence. Two witnesses stated they believed that the report contained comments about distressing interventions by the Registrant. However, it was not clear that either witness had seen the draft, as opposed to having been told about what it might have contained. The Panel did not consider the evidence before it to be sufficient to satisfy it about what the contents of the report actually were. Accordingly, this particular is found not proved.
29. Particular 2 c) i) Proved - In her witness statement, CT stated that the Registrant facilitated a running session with a service user on 17 May 2011 which ended in a disagreement and the service user’s refusal to allow the Registrant to undertake any further work with him. In describing the same event, CR observed that the service user in question had found the Registrant’s line of questioning to be intense and he described her as “giving him a barrage of questions that were inappropriate”. CR added that the service user “felt that he had wanted some quiet time to run and that he could not stop [the Registrant] from talking to him”. The Panel found this provided evidence of the Registrant’s lack of understanding and a lack of her recognition of service users’ lines of thinking and/or feelings. Accordingly, this particular is found proved.
30. Particular 2 c) ii) Proved - This Particular concerns the consequences of the incident of 23 May 2012 considered above in relation to Particular 1 c). In her witness statement, CT commented that a service user had become distressed and upset following an altercation with the Registrant on the date in question and that the service user had required a verbal de-escalation from another member of staff. In his statement, CR said that “the service user had become distressed as a result of [the Registrant’s] intense communication style, mixing of verbal and non-verbal cues and her failure to end the activity which the service user did not want to be involved in”. CR understood that the service user was struggling to cope with the way the Registrant was speaking to him. The Panel considered that this incident demonstrated a lack of understanding of a service user’s feelings and finds this particular proved.
31. Particular 2 d) i) Proved - In her written and oral evidence, KD described her observation of an open coffee morning held on 5 September 2012 that was facilitated by the Registrant. KD described how the Registrant had asked a service user, who was using the internet, “a series of questions that were not related to the service user’s use of the internet”. She added that the service user was “irritated” and that “he did ask her to move away and leave him alone”. Clearly, the service user was distracted as a result of the Registrant’s questions. The Panel considered this to be an example of the Registrant’s failure to adapt her communication style to the needs of the service user. Accordingly this particular is found proved.
32. Particular 3a) Proved - In her oral evidence, CT described an Occupational Therapy Update Report produced by the Registrant on 11 May 2012, which contained a number of unreferenced passages taken from Dr B’s entries on the RIO system. This Report was produced in evidence, allowing the Panel to examine it. The Panel finds this particular to be proved.
33. Particular 3 b) Proved - CT, in her oral evidence, stated that, in her opinion, the Registrant, in her Occupational Therapy Update Report, had reached an interpretation that was not based on evidence and which involved conjecture. This related to a remark about the self-confidence of a service user. The Panel’s attention was drawn to the specific remarks in question. The Panel considers that, in relation to this particular, the inclusion of conjecture and, in relation to Particular 3 a), the lack of appropriate referencing amounted to examples of not producing clear and accurate reports. Accordingly, this particular is found proved.
34. Particular 4 a) Proved - The Panel accepted that the account of CR of the Registrant’s working late on 08 and 09 May 2012 was accurate. He had previously written to the Registrant reminding her of the risks involved in working late and instructing her to keep to her conditioned hours. Thus, this particular is found proved.
Decision on Grounds:
35. The Panel accepted the advice of the Legal Assessor.
36. Throughout its deliberations on these subjects, the Panel reminded itself that lack of competence is regarded as less serious than misconduct and that the proved facts, in appropriate cases, can amount both to misconduct and lack of competence.
37. Mr Corrie contended that Particular 1, in its entirety, if proved, amounted to misconduct, whilst Particular 2 more likely belonged to the category of lack of competence. He was less firm in his submissions about whether Particulars 3 and 4, if proved, were misconduct or lack of competence.
38. The Panel, throughout its deliberations, recognised that these were matters for the Panel’s own judgement.
39. With these submissions in mind and with appropriate appreciation of the evidence in this case, the Panel’s decisions are as follows.
40. The Panel finds misconduct in respect of particulars 1a, 1b)i), 1b)ii), 1b)iii) 1 c), 1d), 1e), and 4a). These acts or omissions, in the judgement of the Panel, all fall short of what would be proper in the circumstances. They amount to breaches of the following HCPC Standards of conduct, performance and ethics:
1. You must act in the best interest of service users
3. You must keep high standards of personal conduct.
7. You must communicate properly and effectively with service users and other practitioners.
10. You must keep accurate records.
The Registrant’s conduct represented a serious divergence from the standards expected and would be considered unacceptable by fellow practitioners.
41. The Panel finds lack of competence in respect of allegations 2a), 2c) i), 2 c) ii), 2 d) i), 3 a) and 3 b). These failings, in the view of the Panel, breach standards 1a1, 1a6, 1b1, 1b3, 1b4, 2b5, 2c1, of the Standards of proficiency for Occupational Therapists. The Registrant’s ability to communicate with service users did not meet the necessary and expected standard of a registered Occupational Therapist. This had a serious impact upon her ability to deliver effective interventions and to form constructive working relationships with service users. As such, her professional performance was unacceptably low based on a fair sample of her work.
Decision on Impairment:
42. Whether or not a registrant’s fitness to practise is currently impaired is a question for the Panel alone.
43. The Panel paid due regard to the submissions of Mr Corrie and reminded itself of the contents of the HCPC Practice Note on Finding that Fitness to Practise is Impaired. It also accepted the advice of the Legal Assessor.
44. In reaching its determination, the Panel has had regard to the public interest in the wider sense – that is, maintenance of confidence in the profession and the upholding of proper standard of conduct and behaviour- and whether or not the conduct is likely to be repeated.
45. Dealing with the Registrant’s personal circumstances, since her resignation in October 2012, it seems that she has not worked as an Occupational Therapist. Furthermore, she has expressed an intention never to work as such again.
46. The Panel considers that the Registrant has breached the fundamental tenets of her profession, both through her misconduct and lack of competence – not least through her failure to act in the best interests of service users. A finding of current impairment is necessary in order to maintain proper standards of conduct and behaviour. The Registrant’s actions and omissions have placed service users at the risk of harm. This was confirmed by the evidence of two witnesses in answering questions from the Panel. The Trust had made extensive attempts to support the Registrant and remediate her misconduct and lack of competence, but her response was inadequate. The Panel considers that she is now beyond remediation.
47. There is a clear wider public interest in making a finding of current impairment in order to uphold proper standards of conduct and behaviour and to maintain confidence in the profession. The Registrant exhibited no evidence of meaningful insight and the Panel considered that, were she ever to seek to return to the profession, there is a real risk of this misconduct and lack of competence being repeated.
48. In summary, the Panel finds that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction:
49. The Panel heard submissions from Mr Corrie, which it considered with care, in coming to its own independent decision as to sanction.
50. The Panel began by considering the principal aggravating and mitigating factors. It identified the following aggravating factors: the absence of meaningful insight and remorse; the lack of remediation; and breaches of a number of professional standards, especially in relation to the fundamental importance of communicating effectively with both service users and colleagues in a multi-disciplinary setting.
51. The Panel was unable to identify any mitigating factors.
52. Separately, the Panel took into account the effects of the Registrant’s health condition and bore in mind the help, support and assistance that was afforded her in this regard.
53. In moving on to consider what, if any, sanction was necessary in this case the Panel first reminded itself of the guidance contained in the Indicative Sanctions Policy. It then went on to consider the available sanctions in ascending order, beginning with the least restrictive. Throughout, the Panel was careful to balance the public interest with the interests of the Registrant.
54. The Panel found that the sanctions of, firstly, no further action, secondly, mediation and, thirdly, a caution order were not appropriate. None of these sanctions would address the important issue of risk to service users, they would not reflect the seriousness of the allegations found proved, nor would they adequately address the wider public interest in maintaining proper standards of conduct, behaviour and competence.
55. The Panel next considered a Conditions of Practice order. The Trust had made extensive attempts to address the Registrant’s professional and behavioural issues, but without success. It was the Panel’s opinion that a Conditions of Practice Order would have no better result. In the light of the Panel’s concerns about the unlikeliness that remediation was possible, the risk to service users and the real risk of repetition, it did not consider a Conditions of Practice Order to be an appropriate or proportionate sanction. In any event, given the Registrant’s very clear indication to the Panel in her email that she would never again work as an Occupational Therapist, it would not be practical to formulate workable conditions or to obtain the essential commitment on the part of the Registrant to resolve matters.
56. Next, the Panel considered a suspension order, which could be for a period of up to one year. The Indicative Sanctions Policy suggests that a Suspension Order may be appropriate where there may be a realistic prospect that repetition will not occur. In this case, the risk of repetition was high and there was no prospect of remediation. The Panel was mindful of the need to consider the wider public interest, which includes protection of the reputation of the profession and the regulatory process, and the need to uphold proper standards of conduct and behaviour. The extent and seriousness of the allegations found proved, which involved misconduct and lack of competence, were such that the Panel did not find that a Suspension Order was a proportionate or appropriate sanction, nor did it consider that such an order would be in the public interest.
57. Finally, the Panel considered the ultimate sanction of a Striking Off Order. The Indicative Sanctions Policy points to a Striking Off Order as the sanction of last resort which should be used when there is no other way to protect the public adequately. In the light of the Registrant’s lack of insight, the high risk of repetition, the absence of remediation and the seriousness of the allegations found proved, the Panel considered a Striking Off Order to be the only appropriate and proportionate sanction in this case and that such an order would be in the public interest.
Order: The Registrar is directed to strike the name of Miss Emma Hurford off the Register from the date that this order comes into effect.
Right of Appeal:
You may appeal to the appropriate court against the decision of the Panel and the order it has made against you. In this case the appropriate court is the High Court in England and Wales.
Under Articles 29 and 38 of the Health and Social Work Professions Order 2001, an appeal must be made to the court not more than 28 days after the date when this notice is served on you. The order made against you will not take effect until that appeal period has expired or, if you appeal during that period, until that appeal is disposed of or withdrawn.
The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work 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 Emma Hurford
|Date||Panel||Hearing type||Outcomes / Status|
|26/05/2015||Conduct and Competence Committee||Final Hearing||Struck off|