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As found proved at the final hearing on 24 - 31 October 2014
During the course of your employment as a chiropodist/podiatrist for NHS Highland:
1. You displayed unprofessional and/or inappropriate behaviour towards patients in that:
a) on or around 10 January 2011 you said in a raised voice to Patient A, “you are very late anyway” or words to that effect in the vicinity of Patient A’s child, other patients and staff;
b) on or around 10 January 2011 you said in a loud voice to Patient B, “go into the toilet and take your tights off and don’t come out with your skirt off like you did the last time” or words to that effect in the vicinity of other patients and staff.
c) on 2 February 2011:
i. you spoke in rude manner to Patient C about his personal hygiene; and
ii. you said in a rude manner to Patient C’s carer 'your brother's hygiene needs to be improved as his feet are so bad what must his body be like' or words to that effect.
d) on 8 February 2011:
i. you said in a rude manner to Patient D in that you said “you are late, you should have made allowances for this” or words to that effect; and
ii. you communicated in a rude manner during your treatment of Patient D.
2. Between 9 June 2011 and 1 December 2011 you bullied and/or
harassed Colleague A in that;
a) not proved
i. not proved
ii. not proved
b) You were physically intimidating and/or aggressive to Colleague A in that;
i. on or around 28 June 2011 you threw a message for Colleague A onto a desk without speaking to her;
ii. on 29 June 2011 you persistently stared at Colleague A after she asked you to turn the radio down;
iii. on 8 July 2011 you pointed aggressively at colleague A and shouted 'No, I am referring to the past two weeks and you' or words to that effect;
iv. on 1 December 2011 you shouted at Colleague A that Dermol 500
cream had been prescribed for you or words to that effect;
v. on 1 December 2011 grabbed materials from Colleague A's hand.
c) You undermined Colleague A’s clinical ability in that;
i. in the case of Patient E you made a note indicating Patient E was dissatisfied with treatment provided by Colleague A, when this was not the case;
ii. not proved
3. You altered patient records made on 6 June 2011 by Colleague A and you did not initial or date your additions and/or changes in the records of:
a) Patient E;
b) not proved
4. The matters described in paragraphs 1-2 amount to misconduct.
5. The matters described in paragraph 3 amount to misconduct and/or a lack of competence.
6. By virtue of your misconduct and/or lack of competence your fitness to practise as a chiropodist/podiatrist is impaired.
1. In July 2010 the Registrant joined NHS Highland as a Band 5 Podiatrist. During the course of her employment, the Registrant was subject to two sets of disciplinary proceedings.
2. Between January and March 2011 the Registrant was the subject of complaints in respect of her conduct towards patients A, B, C and D which investigation concluded that there were issues relating to professionalism and confidentiality and recommended that the Registrant may require customer service training. Further, the investigation noted that the Registrant’s health problems might require independent assessment and that policies in place at the time of the investigation, namely stretch breaks, required clarification. On 27 November 2011 a disciplinary hearing considered these complaints at the conclusion of which the Registrant was made subject to a First Written Warning.
3. On 1 June 2011 Colleague A joined the NHS Highland Podiatry Team as a Band 6 Podiatrist. From that time Colleague A was subjected to bullying and harassment by the Registrant. On 14 September 2011, Colleague A submitted a letter of complaint to NHS Highland about this but the Registrant continued to bully and harass Colleague A. On 20 December 2011, Colleague A submitted a second letter complaining of further incidents of bullying and harassment. These allegations were investigated and it was concluded that Colleague A had been subjected to intimidating and insulting behaviour by the Registrant and that the Registrant had contravened the NHS Highland Dignity at Work Policy by so doing.
4. On 12 December 2012, a hearing under the NHS Highland Dignity at Work Policy was convened to consider the allegations made by Colleague A. At the conclusion of this hearing the Registrant was made subject to a Final Written Warning, which, as she was already subject to the first written warning as referenced above, resulted in her dismissal.
5. A referral was subsequently made to the HCPC which culminated in a fitness to practise hearing on 24 and 27 to 29 October 2014. The Registrant did not attend that hearing and the Panel proceeded in her absence. The Panel found some particulars in the allegation not proved; and some proved as set out in the summary above. It further found that the statutory ground of misconduct was made out, in respect of those particulars except particular 3(a); that the Registrant was currently impaired and that the appropriate and proportionate sanction at that stage was to suspend the Registrant from practice for a period of one year.
6. In reaching its decision, the previous Panel noted:
“In terms of the personal component the Panel has taken account of the fact that this was not an isolated incident. The Registrant was involved in a course of conduct which took place over an extended time period and adversely affected both patients and colleagues. In the absence of the Registrant, there has been no evidence of insight or remorse or any acknowledgement of the seriousness of her conduct and how her actions impacted on patients and colleagues. The Panel has considered the Registrant’s response throughout the capability process and there is little evidence of regret for the consequences of her actions. The Registrant raises issues in relation to her health. However…the evidence indicates that the Registrant was being supported by Occupational Health and adjustments were being made…and additional time was being given to complete notes. Additionally she was receiving [treatment] from her GP. In addition the Panel has seen no evidence of remediation or reflection from the Registrant which leads the Panel to conclude that there is a likelihood of repetition. In the absence of evidence of insight, remorse or remediation, the Panel is not satisfied that the personal component of her conduct has been addressed.”
7. The previous Panel went on to state:
“The Panel is of the view that the Registrant’s actions were a serious departure from the standards expected of a registered health professional and impacted on both patients and colleagues. The Panel has seen very considerable evidence that the Registrant behaved in an unprofessional manner towards four patients and embarked on a course of unacceptable behaviour towards a colleague which amounted to bullying and harassment. In circumstances where there has been a course of conduct directed at both patients and a colleague over a period of time, the Panel is of the view that public confidence in the profession and in the regulatory process would be undermined if a finding of impairment was not made.”
8. When considering what sanction to apply, having taken account of the aggravating and mitigating factors, the previous Panel concluded that a suspension order was the “proportionate sanction and would maintain patient safety and address the wider public interest considerations.” In addition, that Panel stated:
“that a period of twelve months would be appropriate and would allow the Registrant to reflect upon the issues that brought her before this Panel and the findings. As a result of this reflection it is hopefully gain insight and find ways to remediate her behaviour… The Panel considered that a striking off order would be disproportionate and punitive, given the significant mitigation in relation to the Registrant’s health issues...”
9. Finally, the previous Panel indicated that:
It may assist a future Panel if the Registrant were to produce any information related to her health which may be relevant to her remediation; evidence that she has kept her knowledge and skills up to date and that she is competent to practise as an autonomous professional, and evidence of insight and remediation in relation to the issues which gave rise to these proceedings.”
10. The Registrant was not present or represented. Ms Owusu-Akyem applied to proceed in the Registrant’s absence. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules and it therefore had a discretion to proceed in the Registrant’s absence under rule 11. The Panel considered the advice of the Legal Assessor and had regard to the HCPC Practice Note on Proceeding in Absence. The Panel was aware that its discretion to proceed in absence was one which was to be exercised with the utmost care and caution and in the interests of justice. The Panel noted that before and since the previous hearing in October 2014 there had been no engagement by the Registrant. The Panel took into account the fact that the suspension order had to be reviewed before its expiry on 26 November 2015. Given the Registrant’s lack of engagement, the Panel was of the view that an adjournment would be unlikely to secure her attendance at a future date. The Panel therefore decided to proceed in the Registrant’s absence as it was satisfied that it was in the public interest to do so.
11. The Panel noted the submissions of Ms Owusu-Akyem who asked the Panel to conclude that, as there had been no engagement by the Registrant since the previous Panel’s decision, the Registrant remained impaired. She submitted, on the question of sanction, that all options were open but that, given that there were no competency issues, a Conditions of Practice Order was inappropriate.
12. The Panel considered and accepted the advice of the Legal Assessor, who confirmed that it was entitled to use the previous Panel’s findings as a starting point and to presume impairment but to consider whether there had been any changes in the Registrant’s situation since the last hearing. It has also had regard to the HCPC’s Indicative Sanctions Policy.
13. The Panel first considered whether the Registrant’s fitness to practise remained impaired and concluded that it was. The Registrant has not engaged with the HCPC since the hearing in October 2014 and has not submitted any evidence to demonstrate that she has reflected on her failings, that she has developed insight into her actions or that she regrets her behaviour. Accordingly, the Panel cannot be satisfied that anything has changed and thus is led inevitably to the conclusion that her fitness to practise remains impaired.
14. The Panel then moved on to consider what, if any, sanction it should impose upon the Registrant. The Panel noted that the purpose of a sanction was not punitive and that it should consider the risk the Registrant may pose to those using or needing her services in the future and determine what degree of public protection was required. The Panel also gave appropriate weight to the wider public interest which included the deterrent effect on other Registrants, the reputation of the profession concerned and public confidence in the regulatory process.
15. The Panel first considered whether to take no further action and to allow the order to lapse but concluded that this would not be sufficient to mark the seriousness of the Registrant’s conduct and would therefore be wholly inappropriate. Similarly, the Panel was of the view that a Caution Order would not be appropriate since there was no evidence before it that the Registrant had developed insight, had remediated her failings, or had expressed remorse. Accordingly, there remained a significant risk of repetition.
16. The Panel next considered a Conditions of Practice Order. The Panel had no information in relation to the Registrant’s current circumstances or health, and there was no evidence before it that the Registrant was currently working or that she would be willing to engage with conditions. In such circumstances it would be difficult to frame realistic and verifiable conditions. In addition the Panel agreed with Ms Owusu-Akyem that the nature of the conduct found proved, particularly in relation to the bullying and harassment of a colleague, would not be addressed by the imposition of conditions given that her issues were attitudinal and behavioural.
17. The Panel then went on to consider whether to re-impose the Suspension Order. It noted that the Indicative Sanctions Policy suggested that a suspension order would be appropriate where the allegation was of a serious nature but there was a realistic prospect that repetition would not occur. The Panel reminded itself that the Registrant had not engaged with these proceedings since the last hearing, nor for some time before, and therefore there was no evidence before it that she had reflected upon her actions or remedied her failings in any respect. The Panel agreed with the findings of the previous Panel that the Registrant’s failings were remediable but there was no current evidence that she had addressed them. Moreover, there was no further evidence before it in relation to the Registrant’s health issues or how they might currently affect her practice. The Panel was therefore led to the conclusion that the Registrant had simply made no effort to rectify her situation.
18. Accordingly the Panel considered whether it was appropriate to strike off the Registrant. It noted that the Indicative Sanctions Policy suggested that it was a sanction of “last resort” which “should be used where there is no other way to protect the public, for example where there is a lack of insight, continuing problems or denial. An inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate”.
19. The Panel decided that in the absence of any engagement or response from the Registrant in relation to these proceedings, the only conclusion that it could realistically draw was that the Registrant continues to lack insight and is either unwilling or unable to resolve matters, even if she were to be suspended for a further period to allow her additional time to address her failings.
20. Accordingly the Panel decided that a Striking Off Order was the appropriate and proportionate outcome.
That the Registrar is directed to strike the name of Miss Fiona McWilliam from the Register on the date this order comes into effect.
The order imposed today will apply from 27 November 2015.
No notes available
History of Hearings for Fiona McWilliam
|Date||Panel||Hearing type||Outcomes / Status|
|27/10/2015||Conduct and Competence Committee||Review Hearing||Struck off|