Monica M Fay

Profession: Speech and language therapist

Registration Number: SL02889

Interim Order: Imposed on 28 Oct 2015

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 05/10/2015 End: 17:00 29/10/2015

Location: Clayton Hotel, 22 Ormeau Avenue, Belfast BT2 8HS

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Allegations (as amended)


During the course of your employment as a speech and language therapist with the Northern Health and Social Care Trust:


1. Between 21 and 24 September 2009, 32 of your patient case files were informally reviewed and:
a) you did not complete an index card and/or record correct and/or up-to-date information on the index cards for 22 patients;
b) you did not register 14 of the files on the internal computer system (LCID);
c) you did not make an initial appointment and/or a review appointment in 10 of the cases;
d) in more than one case a daily diary entry on LCID did not have corresponding entries in the speech and language therapy (SLT) case notes;
e) in more than one case there was no discharge report;
f) in one case there were no assessments, no clinical notes and no report on file; and
g) in one case there was a 10 month gap between an entry saying therapy was to commence and the next SLT entry.


2. On 24 February 2010, 4 of your case files were audited, and:
a) only the index card could be located for Service User 42;
b) in the case of Service User 45, you
i) had made an incomplete assessment;
ii) had not set clinical goals; and
iii) had not written up all the case notes.


3. On 8 December 2010, 6 of your patient case files were audited, and:
a) in the case of Service User 53:
i) there were no notes about the patient’s chest status or weight loss;
ii) there were no short term SLT clinical aims in the file;
iii) you had written a letter to the GP which contained an error about the patient’s feeding regime; and
iv) you sent a letter to the patient’s daughter and GP recommending fluids which was based on a telephone call with the patient’s daughter rather than an assessment.
b) in the case of Service User 54;
i) you provided no communication aims in the file; and
ii) you had only undertaken an informal assessment.


4. On 19 May 2011, 16 of your patient case records were audited, and:
a) there were administration and/or clinical management issues identified in all 16 files;
b) in 5 cases you did not record the initial interview date and/or the discharge date or had included incorrect information on the SLT register;
c) you did not keep accurate records in 4 cases in that:
i) you entered a record on LCID but did not make corresponding clinical notes; and/or
ii) you made clinical notes but made no corresponding entry on LCID.
d) there was an inconsistency between the date a referral was received and the date the referral was registered on LCID in 5 cases;
e) you placed 6 patients on six-monthly reviews rather than three monthly reviews and did not document the reasons;
f) at least 6 cases were not filed properly for review;
g) you recorded an incorrect Programme of Care in up to 13 cases.


5. On 15 March 2011, you placed Service User 1 on ‘Nil Orally’ restrictions for 72 hours, and you:
a) made this decision without sufficient clinical evidence;
b) made this decision seemingly without consulting the patient’s notes;
c) overruled a multidisciplinary team’s agreed care plan;
d) changed the patient’s feeding plan without sufficient evidence to do so.


6. On 11 April 2011 Service User 8 was referred to you for dysphagia assessment, and you:
a) did not assess Service User 8 and/or check the patient records leading you to give incorrect recommendations for the patient;
b) on 31 May 2011 wrote a Care Plan changing food consistencies for Service User 8 without assessing him, having received advice of a choking incident;
c) made changes to 5 Care Plans that were not based on sound clinical reasoning;
d) contacted care staff on 30 September 2011 to advise that you would review Service User 8's eating and drinking skills within a week but did not notify them until 11 October that he should not be allowed bread and butter.


7. The matters set out in particulars 1 - 6 constitute misconduct and/or lack of competence.


8. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding


Preliminary Matters


1. Ms Fay has neither attended this hearing nor been represented at it.  The Panel first considered whether she had been sent a proper notice of hearing.  The Panel concluded that the letter dated 4 September 2015 addressed to Ms Fay’s address as it appears on the HCPC Register informing her of the date, time and location of the hearing constituted a valid notice of hearing.


2. After the Panel stated that it was satisfied that there had been good service of the notice of hearing, the Presenting Officer applied for a direction that the hearing should proceed in the absence of Ms Fay.  In considering this application the Panel heeded the guidance contained in the HCPC Practice Note entitled, “Proceeding in the Absence of the Registrant”.  The Panel accepted the advice of the Legal Assessor, and in particular kept at the forefront of its deliberations the fact that a decision to proceed with a hearing in the absence of a registrant is one to be taken with utmost care and caution.  A finding that there has been good service of the notice of hearing allows the Panel to consider exercising its discretion to direct that the hearing should continue; it does not require that decision to be made.  The Panel made the following findings in relation to this issue:


• Ms Fay had knowledge of the present hearing dates.  In addition to the notice of hearing letter sent on 4 September 2015, the contents of that letter were additionally sent to Ms Fay by email on the same date.  Furthermore, the hearing dates are clearly stated in the hearing bundles sent to her by the HCPC’s Solicitors.

• Ms Fay has failed to establish that she is incapacitated from attending the hearing, and has not indicated for how long any such alleged incapacity would prevent her from attending a hearing.  Before the notice of hearing was sent she stated that ill health prevented her attending the hearing.  In response to this assertion the HCPC’s Solicitors wrote to her on 24 August 2015 inviting her to consent to the disclosure of her medical records and to be examined by a medical practitioner nominated by the HCPC at a location convenient to her.  She did not respond to this invitation or a reminder sent a short while later.  In circumstances where the HCPC cannot reasonably be expected to have evidence of a personal and confidential matter concerning Ms Fay, the failure to co-operate with the HCPC’s reasonable steps to obtain evidence that might corroborate Ms Fay’s assertion has the consequence that the Panel is unable to place any significant weight on the assertion of incapacity.


• Ms Fay has not sought an adjournment of the hearing.

• Ms Fay has not suggested that she would be likely to attend a hearing on a future occasion.  Neither has she suggested that she wishes to be represented on this or on a future occasion.


• The effect of the preceding factors is that Ms Fay’s absence from the hearing amounts to a voluntary waiver of her right to attend.


• The same factors do not enable the Panel to conclude that there is any significant prospect that Ms Fay would attend a hearing on a future occasion if the present hearing were to be adjourned.


• The Panel does not find that further delay would be likely to impede the ability of the witnesses to give evidence as the matters are already historical (the relevant events having occurred in the period 2009 to 2011).  It is unlikely that their recollections would be further dimmed by a further delay in the hearing taking place, and in any event their evidence is supported by very extensive contemporaneous documentation.


• However, there is a clear public interest in an expeditious determination on allegations made against professional people, and that public interest becomes more acute as time passes.  Mention has already been made of the fact that the relevant events occurred between six and four years ago.  A Panel of the Investigating Committee determined that there was a case to answer two years ago.  The final hearing was due to take place in February 2015, but in the event it did not take place as the Panel on that occasion considered, and rejected, an application that the case be transferred to the Health Committee.  An adjournment of the present hearing would involve a delay of many months.  In addition, the attendance of six witnesses has been arranged, as well as the Panel, legal support and hearing venue arranged.  For all these reasons further delay is undesirable.


• The allegations made against Ms Fay are serious.  If the HCPC’s case is not well-founded, then quite apart from Ms Fay’s interests requiring that determination, there is a public interest in it being declared.  If the HCPC’s allegations are substantiated, then there is a strong public interest in that fact being publicly determined and recorded by the statutory regulator, and that factor applies even if Ms Fay is not currently working or working abroad.


• There is a clear disadvantage to Ms Fay in the case proceeding in her absence, particularly as she has not chosen to make any written representations that are focused on the specific particulars advanced against her.
The Panel considered all of these factors, and kept in mind throughout that a decision to proceed with a case in the absence of the registrant concerned is one to be taken with the utmost care and caution.  The Panel concluded that the factors in favour of the hearing continuing outweighed those that did not, including the disadvantage to Ms Fay arising from her absence.  Accordingly, the Panel directed that the hearing should proceed in her absence.


3. After the Panel directed that the hearing would proceed in the absence of Ms Fay, the Presenting Officer applied to amend the allegations.  The proposed amendments were contained in a Case Summary served with the hearing bundles.  The Case Summary was served on Ms Fay before the hearing that took place in February 2015, and again before the present hearing.  It follows that Ms Fay had been put on notice of the intention to apply to amend the allegations on these two occasions.  Ms Fay had made no objection to the proposed amendments.  The Panel concluded that the proposed amendments were appropriate in the sense that they accorded with the case the HCPC proposed to advance, which in turn was based upon the material contained in the hearing bundles.  They were designed to correct and clarify limited elements of the HCPC’s contentions.  The Panel was satisfied that they neither altered the general thrust of the case nor increased the overall seriousness of it.  Furthermore, the Panel was satisfied that there would be no prejudice to Ms Fay in allowing the amendments, particularly as there had been no focused comments made by her in relation to the allegations in their original form.  For all these reasons the Panel concluded that the amendments should be permitted.


4. The Panel was informed about certain matters of background in respect of Ms Fay that would normally not have been included in the evidence as a result of their prejudicial nature.  The Panel has excluded them from their consideration at all stages of these proceedings, but understands why it was necessary for them to be introduced.


Background


5. During the relevant time, Ms Fay was employed by the Northern Health and Social Care Trust (the Trust), Northern Ireland, as a Band 7 Speech and Language Therapist (SLT).  She was employed for half of the week in the Adults team and the other half of the week in the Adults with Learning Disability team (ALD).  She worked from two bases, the Antrim Adult Centre (AAC) and the Braid Valley Hospital (BVH) in Ballymena.


6. Ms Fay experienced an extended period of sickness absence between June and November 2009.  In September 2009, Witness 1, Ms Fay’s line manager and Speech and Language Therapy Service lead, asked Witness 2 and Witness 4, both Speech and Language Therapy Clinical Leads, to review the files in Ms Fay’s caseload to see if any of them required action to be taken in her absence.  The request arose from the length of Ms Fay’s absence from work, rather than any extant concerns about her practice.  Witness 2 reviewed Ms Fay’s caseload at BVH, whilst Witness 4 reviewed those at AAC.


7. These informal reviews gave rise to concerns about Ms Fay’s management of a number of cases, which are the subject of particular 1 of the allegation.  As a result, Witness 1 implemented additional clinical supervision and support sessions for Ms Fay to take place on a six to eight weekly basis.  These were to be provided by Witness 3 and they began in February 2010.


8. On 24 February 2010, Witness 3 undertook an audit of four of Ms Fay’s casefiles and, as a result, identified that two of them were deficient in the manner set out in particular 2 of the allegation.


9. A further audit of Ms Fay’s casefiles was carried out by Witness 3 on 8 December 2010, this time involving six service users.  Specific deficiencies were identified in two of the casefiles and these are reflected in particular 3 of the allegation.


10. An audit of two of Ms Fay’s casefiles, carried out by Witness 6, in January 2011 as part of a supervision session was satisfactory.


11. An audit of Ms Fay’s casefiles was conducted by Witness 2 on 19 May 2011.  This audit involved the casefiles of 16 service users and Witness 2 identified deficiencies in respect of administrative matters and/or clinical management in all of them.  The specifics thereof are set out in particular 4 of the allegation. 


12. By June 2011, a standard regime of supervision sessions for Ms Fay was reinstituted as her case management was adjudged to have improved. 


13. Upon Witness 6’s return from a planned period of absence (between March and June 2011), she conducted a random audit in June 2011 of  all staff casefiles relating to dysphagia cases within the ALD team, including Ms Fay’s.  This was an audit that was separate to and independent of the audits of Ms Fay’s caseload alone that were being carried out by Witness 2 and Witness 4. 


14. The June 2011 audit considered 11 of Ms Fay’s files, but none of them was found by Witness 6 to be of an acceptable standard and revealed concerns about her clinical practice.  The same files were reviewed by Witness 6 approximately one week later on 5 July 2011 and ten of them were found not to have been actioned in the intervening period.  Of particular concern were the casefiles relating to Service User 1 and Service User 8.  These form particulars 5 and 6 respectively of the allegation. 


15. Concerns about Ms Fay’s actions in respect of Service User 1 had already come to the fore in March 2011, following her clinical decision to recommend putting Service User 1 on a programme of ‘nil by mouth’ (NBM) for a period of 72 hours. 


16. In relation to Service User 8, Witness 6’s July 2011 audit suggested that Ms Fay had twice made recommendations for alterations to the Service User’s care plan in terms of consistency/texture of food without making any direct assessment of Service User 8, but rather by relying on information provided to her by non-SLT staff.


17. On 14 November 2011, Witness 5 was contacted by the Trust’s Human Resources department and appointed as Investigating Officer to conduct an investigation into a complaint made by Service User 1’s mother (Person 1) to the Trust about Ms Fay’s involvement with Service User 1.  An investigation report was not, in the end, produced by Witness 5 as Ms Fay resigned from the Trust on 21 December 2012, before the investigation process was complete. 


Decision on facts


18. The Panel reminded itself that the burden of proving the facts is on the HCPC and that Ms Fay does not have to prove anything.  Further, a fact is only to be found proved if the Panel is satisfied of it on the balance of probabilities; that is that the pleaded fact is more likely than not to have happened.


19. The Panel heard submissions from the HCPC on the factual stage and received advice from the legal assessor, who reminded it of the contents of the Practice Note as well as how to approach the assessment of witnesses and the drawing of inferences.


20. The Panel heard live evidence from:
(a) Witness 1, Speech and Language Therapy Service Lead at the Trust, with responsibility for the Adult Speech and Language Therapy Service and the Adult Learning Disability Service;
(b) Witness 2, Clinical Lead Speech and Language Therapist at the Trust, within the Adult Speech and Language Therapy Service;
(c) Witness 3, Clinical Lead Speech and Language Therapist at the Trust, within the Adult Speech and Language Therapy Service;
(d) Witness 4, Clinical Lead Speech and Language Therapist at the Trust, within the Adult Learning Disability team, part of the Adult Speech and Language Therapy Service;
(e) Witness 5, now retired, but at the relevant time Speech and Language Therapy Service Lead for the Children with Disability team at the Trust; and
(f) Witness 6, now retired, but at the relevant time Clinical Lead Speech and Language Therapist at the Trust within the Adult with Learning Disability team.


21. Supplementing the oral evidence of the above witnesses, there was a bundle of written statements and exhibits consisting of some 1800 pages, which the Panel had considered in advance of the hearing and which formed the reference material for the evidence during the facts stage.  The Panel was also provided with an email, dated 26 January 2015, received from Ms Fay which set out her position on the way in which the Trust had treated her during the relevant period.  Ms Fay expressed concern that she had been subjected to micromanagement and a “witch-hunt”, whilst at the Trust.  This email also referred to health matters and the Panel also received a copy of a short medical report from Ms Fay’s general practitioner, dated 18 February 2015.  In fairness to the absent Ms Fay, her case as set out within the above email was put to the witnesses, so that they could respond.

22. The Panel considered the credibility and reliability of the HCPC’s six witnesses, bearing in mind as well the case put forward by Ms Fay of there being a campaign to oust her from her post.  The Panel noted that all six witnesses were qualified SLTs with significant experience, who occupied senior posts within the Trust.  It was clear to the Panel that although the witnesses (with the exception of Witness 5, who worked in a different department and had not worked with Ms Fay for a number of years) were all nominally employed by the Trust in the same department, they did not all work together with each other or, necessarily, have a close working relationship with Ms Fay.  The Panel also noted that Witnesses 2, 3, 4 and 6 undertook reviews or audits of Ms Fay’s casefiles at a number of different points during the relevant period and, where deficiencies were identified (on most though not all occasions), these were of a similar nature involving either basic – but vitally important – administrative/recording failures or involving questionable clinical judgment/management.  Each of these witnesses identified, what they described, as serious failings in Ms Fay’s practice.


23. As to credibility, the Panel did not detect any ulterior motive on the part of any of the witnesses other than to assist the Panel in adjudicating on Ms Fay’s case.  There was, in the Panel’s view, nothing to support any suggestion of the witnesses conspiring against Ms Fay, either at the relevant time or in respect of their evidence for this hearing.


24. As to reliability, the Panel considered that the oral evidence of each witness was consistent with their written evidence (supported by the available exhibits) and the evidence of all six witnesses was mutually consistent insofar as the evidence of one touched on that of another.  The Panel was impressed by the quality of the evidence provided to it by all six witnesses, which was thoughtful, clear and demonstrated their concern for the impact of Ms Fay’s practice on service users, rather than any personal antagonism towards her.


25. For these reasons, the Panel concluded that it could and should rely on all of the evidence presented to it by the HCPC’s witnesses. 

 
Particular 1 – found proved


1. Between 21 and 24 September 2009, 32 of your patient case files were informally reviewed and:
a) you did not complete an index card and/or record correct and/or up-to-date information on the index cards for 22 patients;
b) you did not register 14 of the files on the internal computer system (LCID);
c) you did not make an initial appointment and/or a review appointment in 10 of the cases;
d) in more than one case a daily diary entry on LCID did not have corresponding entries in the speech and language therapy (SLT) case notes;
e) in more than one case there was no discharge report;
f) in one case there were no assessments, no clinical notes and no report on file; and
g) in one case there was a 10 month gap between an entry saying therapy was to commence and the next SLT entry.

26. The evidence for the facts alleged in this particular comes primarily from Witness 2, who undertook the informal review of Ms Fay’s casefiles and referral letters at BVH, during Ms Fay’s sickness absence in 2009.  The evidence of Witness 2 was that, in conducting her informal review, she was careful to exclude from it any referrals that would have been received after the date on which Ms Fay went on sickness absence.  The related exhibits fully supported the conclusions about specific deficiencies in Ms Fay’s practice that were identified by Witness 2 and reflected in particular 1 of the allegation.

27. Having carefully considered the documentary exhibits and the evidence of Witness 2, the Panel found particular 1 proved in its entirety.


Particular 2 – found proved


2. On 24 February 2010, 4 of your case files were audited, and:
a) only the index card could be located for Service User 42;
b) in the case of Service User 45, you
i) had made an incomplete assessment;
ii) had not set clinical goals; and
iii) had not written up all the case notes.

28. The evidence for the facts alleged in this particular comes from Witness 3, who conducted the audit.  The Panel carefully cross-referenced the specific facts in the allegation with the documentary exhibits produced by this witness and was satisfied that they supported the findings of the audit set out by Witness 3 and reflected in this particular of the allegation.


29. The Panel, therefore, found this particular proved in its entirety.


Particular 3 – found proved


3. On 8 December 2010, 6 of your patient case files were audited, and:
a) in the case of Service User 53:
i) there were no notes about the patient’s chest status or weight loss;
ii) there were no short term SLT clinical aims in the file;
iii) you had written a letter to the GP which contained an error about the patient’s feeding regime; and
iv) you sent a letter to the patient’s daughter and GP recommending fluids which was based on a telephone call with the patient’s daughter rather than an assessment.
b) in the case of Service User 54;
i) you provided no communication aims in the file; and
ii) you had only undertaken an informal assessment.

30. The evidence for the facts alleged in this particular comes from Witness 3.  She had been undertaking regular personal supervision and support sessions with Ms Fay during 2010, which included audits of her casefiles.  At the October 2010 supervision session, Witness 3 identified specific deficiencies in the casefiles of Service Users 53 and 54.  Witness 3 told Ms Fay that both of these service users required to be seen by her for further assessment. 


31. Witness 3 again reviewed the casefiles of Service Users 53 and 54 in the next supervision session with Ms Fay that occurred on 8 December 2010.  Witness 3 then identified the specific deficiencies in Ms Fay’s practice as set out in this particular of the allegation. 

 
32. The Panel carefully considered the documentary exhibits relating both to the audit in October 2010 and that in December 2010 as well as the casefiles of Service Users 53 and 54.  Taken with the evidence of Witness 3, the Panel was satisfied that this particular of the allegation had been proved in full.


Particular 4 – found proved


4. On 19 May 2011, 16 of your patient case records were audited, and:
a) there were administration and/or clinical management issues identified in all 16 files;
b) in 5 cases you did not record the initial interview date and/or the discharge date or had included incorrect information on the SLT register;
c) you did not keep accurate records in 4 cases in that:
i) you entered a record on LCID but did not make corresponding clinical notes; and/or
ii) you made clinical notes but made no corresponding entry on LCID.
d) there was an inconsistency between the date a referral was received and the date the referral was registered on LCID in 5 cases;
e) you placed 6 patients on six-monthly reviews rather than three monthly reviews and did not document the reasons;
f) at least 6 cases were not filed properly for review;
g) you recorded an incorrect Programme of Care in up to 13 cases.

33. Witness 2 was requested by Witness 1 to undertake a further audit of Ms Fay’s casefiles at BVH, which Witness 2 did on 19 May 2011.  [The Panel noted, in passing, that this should not be confused with the supervision session and casefile audit conducted by Witness 3 on the same date, which does not form part of the allegation].  Witness 2 spent a full day undertaking this task and, in total, she reviewed 16 of Ms Fay’s casefiles.


34. Witness 2 considered that there were identifiable deficiencies in all 16 files in the permutations reflected in this particular of the allegation. 


35. The Panel had available to it not only Witness 2’s evidence but also the documentary exhibits underlying this evidence.  Having considered all of the evidence relevant to this particular, the Panel was satisfied that it had been proved in full. 


Particular 5 – found proved


5. On 15 March 2011, you placed Service User 1 on ‘Nil Orally’ restrictions for 72 hours, and you:
a) made this decision without sufficient clinical evidence;
b) made this decision seemingly without consulting the patient’s notes;
c) overruled a multidisciplinary team’s agreed care plan;
d) changed the patient’s feeding plan without sufficient evidence to do so.

36. Service User 1 had complex learning and communication difficulties, as well as significant health problems. She had been attending the AAC from January 2010 and was referred for speech therapy input due to dysphagia. Ms Fay was assigned to address Service User 1’s communication issues and Witness 4 was assigned to deal with her dysphagia.


37. On 30 November 2010, Witness 4 went on maternity leave and prepared an information pack for Witness 6, the SLT who was taking over dysphagia care.  Ms Fay received a copy of that pack along with other staff members at a team meeting on 15 November 2010.  Service User 1’s case was also discussed at a multi-disciplinary team meeting on 3 December 2010 when the Care Plan was discussed.


38. Witness 1 stated that on 25 March 2011 she received a telephone call from Ms Fay, who asked her to send a copy of the SLT discharge policy.  Witness 1 understood that Person 1 would not comply with SLT recommendations so Service User 1 was to be discharged. Witness 1 was sufficiently concerned by this that she discussed it with colleagues.


39. Witness 3 informed Witness 1 that she had received a phone call from Ms Fay on 18 March 2011 as she wanted advice. Witness 3 also received a call from Person 1 as she was angry with Ms Fay’s management of the case and wished to make a complaint.  Witness 1’s evidence was that Ms Fay should not have contacted Witness 3 for advice as she did not specialise in Adults with Learning Disabilities.

40. Witness 1 gave evidence that she held a meeting with Person 1 on 21 April 2011. At this meeting Witness 1 was informed that:
• Ms Fay had asked Person 1 to attend the AAC with Service User 1 on 15 March 2011;
• At this meeting, Ms Fay stated that she had been told that Service User 1 had aspirated (ingested food or drink into her lungs) and needed to rest her chest.  Ms Fay informed Person 1 that, therefore, she was putting Service User 1 on a regime of NBM for 72 hours;
• Person 1 asked Ms Fay whether she had read Service User 1’s notes and Ms Fay confirmed that she had not read the swallowing/dysphagia notes;
• Ms Fay told Person 1 that Ms Fay’s duty of care to the Service User would end if Person 1 did not comply with the NBM recommendation. Further, she said that Service User 1 could not be fed orally at the AAC in those circumstances;
• Person 1 said that she was upset because Ms Fay had told her it was a moral and ethical decision;
• Person 1 expressed concerns to Ms Fay about how her daughter would receive her medication if she were to be NBM.  Ms Fay gave advice about this;
• Ms Fay had agreed to attend in the morning of 15 March 2011 but did not attend until the afternoon. Despite the fact that fatigue played a part in Service User 1’s swallowing difficulties, Ms Fay assessed her in the afternoon;
• Person 1 followed Ms Fay’s recommendations. 
• Service User 1 was subsequently admitted to hospital on 20 March 2011 for a period of one month;
• Person 1 described feeling as though Ms Fay was “holding a gun to her head” and that she was forced to accept the NBM decision;
• Ms Fay made attempts to contact Person 1 thereafter, despite the fact that Service User 1 was no longer her responsibility as she was in hospital.
41. In relation to what she was told by Person 1, Witness 1 expressed particular concern about:
• Ms Fay being aware that Service User 1’s swallowing issues were complex, because they were discussed at the multi-disciplinary team meeting on 3 December 2010;
• Ms Fay not having read Service User 1’s dysphagia notes prior to the meeting with her mother;
• Ms Fay’s assessment of Service User 1’s swallow being limited and inadequate;
• The absence of any recognised standard dictating the use of 72 hours of NBM in a case such as this;
• SLTs should not recommend NBM unless a service user is clearly aspirating. It is a decision that should be taken in conjunction with a multi-disciplinary team because of the possible impact on hydration, medication and nutritional issues;
• The refusal of further feeding at the AAC, in the absence of agreement to the NBM regime, had not been agreed with AAC staff and was a decision that should not have been taken unless there was an extremely acute incident;
• Ms Fay purported to give advice about how Service User 1’s medication needs might be addressed whilst she was NBM, but this was not within her responsibility and should have been for a doctor to decide;
• Ms Fay changed Service User 1’s feeding recommendations without making any reference in the notes to the previous recommendations or the clinical reasoning for making such changes.


42. Witness 4’s evidence was that she reviewed the casefile of Service User 1, following her return to work.  She noted that on 18 March 2011, Ms Fay had been asked for a home visit as Service User 1’s parents were unhappy with the decision to place her on NBM. Witness 4 observed that Ms Fay recorded this as a “personal attack” in the casefile.


43. Ms Fay met with Witness 1 on 10 May 2011 to discuss Service User 1.  Witness 1 gave evidence that she was not told anything by Ms Fay to suggest that anything reported by Person 1 was incorrect.  Ms Fay told Witness 1 that she thought her clinical management of the case was fine.


44. Witness 1 met Person 1 again on 8 June 2011 as a follow up and told her what Ms Fay had said.  Person 1 expressed the view that she did not think that Ms Fay was safe to practise.  Witness 1 advised Person 1 that she could submit a formal complaint if she felt it appropriate.


45. Ms Fay met with Witness 1 for a second time on 10 August 2011.  Witness 1’s evidence was that Ms Fay maintained that she had acted in Service User’s 1 best interests and said that Person 1 could complain if she wanted to.  Ms Fay was initially unclear about where she had taken the 72 hour ‘chest rest’ standard from, but later said that she had obtained it from nursing on the wards. Ms Fay was unable to demonstrate from the clinical notes that she had taken decisions in line with that which other professionals had been saying about Service User 1’s condition.  Witness 1 remained of the view that a multi-disciplinary meeting should have been held.


46. A third meeting about this incident took place on 12 September 2011.  Ms Fay was informed that a formal complaint was expected from Service User 1’s mother.  Ms Fay did not accept that she had done anything wrong.  A formal letter of complaint was received on 13 September 2011 and led to the investigation by Witness 5.

47. The areas of concern expressed by Witness 1 were corroborated and supported by the evidence of Witness 3, Witness 4 and Witness 6, who all had some degree of involvement with Service User 1 and her family.  Further, there was contemporaneous documentary evidence that underpinned the oral and written evidence of the witnesses.  The Panel noted that the evidence available did not suggest that Ms Fay took any fundamental issue with the facts alleged and, indeed, Ms Fay still maintained the correctness of her decision and approach some months later.


48. The Panel was satisfied, on the balance of probabilities, from all the available evidence that the HCPC had proved this particular of the allegation in full.
Particular 6 – found proved


6. On 11 April 2011 Service User 8 was referred to you for dysphagia assessment, and you:
a) did not assess Service User 8 and/or check the patient records leading you to give incorrect recommendations for the patient;
b) on 31 May 2011 wrote a Care Plan changing food consistencies for Service User 8 without assessing him, having received advice of a choking incident;
c) made changes to 5 Care Plans that were not based on sound clinical reasoning;
d) contacted care staff on 30 September 2011 to advise that you would review Service User 8's eating and drinking skills within a week but did not notify them until 11 October that he should not be allowed bread and butter.

49. Witness 1 gave evidence that she became aware that staff at the AAC where Service User 8 attended had expressed concerns as they had referred him some months earlier to Ms Fay, due to choking episodes, but he had not yet been assessed. In the circumstances described, Witness 1 took the view that Service User 8 should have been seen within ten days of the referral.  As a result of these concerns, Witness 1 asked Witness 6 to conduct an audit of Service User 8’s file, amongst others.


50. Witness 6 expressed concern that Ms Fay twice made changes to Service User 8’s care plan, but on neither occasion did she undertake a direct assessment.  Ms Fay did make contact with Service User 8’s mother.  However, some of the information provided to Ms Fay about Service User 8 and his care plan turned out to be incorrect, in part because staff had misinterpreted recommendations made at a much earlier stage by Witness 4.  Witness 6 stated that Ms Fay had relied on this incorrect information whereas she should herself have looked at Witness 4’s original recommendations in the casefile, which could have avoided some of the confusion and contradictory recommendations.  Witness 6 expressed the view that making recommendations without an assessment was “unsafe”. 

51. Witness 6 also explained the potential negative medical and quality of life impact on a service user, such as Service User 8 who has Down’s Syndrome, of being given food of a consistency that is unnecessarily pureed.  A dietitian should be consulted due to concerns about the effect on bone density and/or Vitamin D deficiency.

52. Although the Panel acknowledged that not every relevant contemporaneous document was available to it, it was satisfied from the evidence that was available (including other contemporaneous exhibits) that, on the balance of probabilities, the facts alleged in this particular have been proved.

Decision on Grounds


53. Mr Walters made submissions in favour of the Panel finding that any facts proved amounted either to misconduct or lack of competence.  Whilst leaving it for the judgment of the Panel, he suggested that the picture overall in respect of Ms Fay was that she could practise safely at times, but that the deficiencies were the result of her either not acting as required or refusing to act as required.  Either of these two conclusions should lead to a finding of misconduct, he submitted. 


54. The Panel received advice from the legal assessor who addressed them on the point that misconduct, in line with the Practice Note and the case of Meadow v GMC, requires a serious falling short of the standards expected of a registrant in the circumstances.


55. As a preliminary point, the Panel noted the terms of the following standards from the HCPC’s Standards of conduct, performance and ethics, adopted in July 2008:
1 - You must act in the best interests of service users
5 - You must keep your professional knowledge and skills up to date
6 - You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner
7 - You must communicate properly and effectively with service users and other practitioners
10 - You must keep accurate records
12 - You must limit your work or stop practising if your performance or judgment is affected by your health.


56. The Panel accepted the legal assessor’s advice and took account of the matters set out in the Practice Note.  The decision on statutory grounds is one for the Panel applying its judgment and not a matter of proof. 

 
57. The Panel first addressed the dichotomy between finding that a proved fact amounts to misconduct or to lack of competence.  In considering this, the Panel was mindful of evidence in the extensive oral and documentary evidence that:
• There do not appear to have been any or any notable concerns about Ms Fay’s practice prior to her going on sickness absence in June 2009;
• Ms Fay had, by then, worked for the Trust for a number of years and had achieved appointment as a Band 7 senior SLT, implying a level of competence commensurate with the Trust’s general audit, appraisal and promotion procedures;
• Even within the period of concern about her practice, Ms Fay was capable of satisfactory practice on occasion, as attested to by a number of witnesses.  For example, Witness 3’s statement makes clear that audits that she conducted of Ms Fay’s casefiles were deemed to be satisfactory in May, June and August 2010;
• The deficiencies identified in Ms Fay’s practice were of such a basic character that, as Witness 6 and others noted, a student or newly-qualified SLT would not be expected to demonstrate them.  The Panel concluded that this alone is strongly indicative of their falling seriously below the standard to be expected of a reasonable practitioner and more commensurate with the definition of misconduct.


58. In all the circumstances, the Panel concluded that to find the ground of lack of competence made out would be incompatible with the factual matrix in this case. 


59. By reference to the standards mentioned above and applying its judgment, the Panel determined that individually each and every one of the particulars found proved constituted conduct falling seriously below the standards to be expected of a reasonably competent practitioner.


60. The Panel, therefore, found the statutory ground of misconduct to have been made out.


Decision on Impairment


61. The Panel heard submissions from Mr Walters on the question of current impairment.  The Panel noted that Ms Fay had not availed herself of the opportunity to provide any written submissions, testimonials or other forms of evidence that might be relevant to this stage of the proceedings.

62. As to impairment, the legal assessor again invited the Panel’s attention to the Practice Note, highlighting the need to consider the extent to which the matters found proved are capable of remedy and have been remedied.  He also reminded the Panel of the wider public interest grounds that must also be considered when assessing current impairment.


63. The Panel reminded itself that impairment is a matter for its judgment based on the evidence and its earlier determinations.  Further, the Panel is judging the question of impairment as at the date of the hearing and not the date of the events giving rise to the allegation.

64. In respect of Ms Fay, the Panel noted, in particular, that the failings identified in her practice related to a significant number of cases over an extended period of time.  Although a number of audits for regular supervision sessions were found to be satisfactory, deficiencies were identified in many other audits and the Panel was particularly concerned that when larger numbers of casefiles were analysed, a high proportion was found to contain deficiencies in administrative issues, clinical management/judgment and/or clinical reasoning.


65. Although the Panel noted that Ms Fay may have viewed the audits and regular supervision sessions as “micromanaging” her or, even, as a “witch-hunt” against her, this was not the Panel’s assessment at all.  On the contrary, the Panel took the view that the witnesses involved in auditing and supervision sessions genuinely wished to help Ms Fay with whatever the difficulties were that were leading to her lapses in acceptable and safe practice.  The Panel viewed the working environment as supportive rather than condemnatory.  The Panel also took account of the fact that whilst Ms Fay had made reference to her declining health situation within these proceedings – indeed an unsuccessful application was made by her to transfer this matter to the Health Committee – the witnesses denied that Ms Fay had relied on her health as any explanation for the deficiencies in her practice at the relevant time. 

66. It was also of note, in the Panel’s view, that the very serious failings in Ms Fay’s practice relating to Service Users 1 and 8 occurred at a time when she had already been receiving significant, additional supervision and support in her role.  The evidence available to the Panel suggested that, even six months after her flawed decision-making in relation to Service User 1, and in the knowledge of the consequences that flowed from that decision-making, Ms Fay still refused to acknowledge that she may have been wrong or to express any remorse for the events.  The Panel considered this to be a matter of significant concern. 


67. Although the type of deficiencies identified within the facts found proved might, theoretically, be capable of remediation, there was, in the Panel’s estimation, no evidence of actual or even attempted remediation by Ms Fay of them.  This was of little surprise, however, as Ms Fay had demonstrated neither insight into nor remorse for any of her actions, seeking to deflect criticism away from herself and towards her health and/or the actions of others, whilst producing no evidence to support such contentions.


68. The Panel concluded that, on the personal component, Ms Fay’s failings had not been remediated and the risk of repetition remained high.  Therefore, her fitness to practise is still impaired.


69. When considering the public component, the Panel was driven to the conclusion that Ms Fay’s demonstrable inability or unwillingness to take personal responsibility for her shortcomings, coupled with her attempts to deflect criticism away from herself, is of such significance that public confidence in the profession would be undermined if a finding of impairment were not made. 


70. The public does not expect perfection at all times from professionals.  However, the public (and the profession) reasonably expects that professionals will be reflective, learn from their mistakes and accept responsibility when they get things wrong.  The public and the profession also rightly expect that professionals can recognise the limits of their competence, work within those and seek appropriate advice and input from others when required.  In the Panel’s view, Ms Fay’s general failures in her practice, but her actions and attitudes in relation to Service Users 1 and 8 in particular, demonstrate conduct that falls far short of the public’s legitimate expectations.  In the absence of any exculpatory explanation that might lessen the impact of her conduct on the public consciousness, the Panel has concluded that a finding of current impairment is inevitable on the basis of the wider public interest.


71. The Panel has therefore determined that Ms Fay’s fitness to practise is currently impaired as a result of her misconduct.


Decision on Sanction


72. On behalf of the HCPC, Mr Walters submitted that the question of sanction is a matter for the Panel and reminded the Panel of the Indicative Sanctions Policy.  Mr Walters also submitted that the Panel has the full range of sanctions available in this case.

73. The Panel received advice from the legal assessor, who made reference to the Council’s Indicative Sanctions Policy and, specifically, the question of proportionality.  The Panel accepted this advice.


74. In reaching its determination on sanction, the Panel has again given careful consideration to all of the evidence and to the submissions of the HCPC as well as its findings at the impairment stage. 

75. The Panel reminded itself that the primary purpose of sanction is to address public safety.  Nevertheless, the wider public interest considerations of the reputation of the Speech and Language Therapy profession, public confidence in the profession and in the regulatory process, as well as the deterrent effect on other registrants, are all key considerations in this case.

76. The Panel had regard to the Council’s Indicative Sanctions Policy and the need to ensure that any sanction imposed is both reasonable and proportionate, properly balancing the interests of the public with Ms Fay’s own interests.  The Panel accepted the legal assessor’s advice that the doctrine of proportionality would mean imposing no greater restriction on Ms Fay’s ability to practise as an SLT than is absolutely necessary to protect service users and/or to address the wider public interest aspects of the case.


77. The Panel also noted the emphasis placed by the Indicative Sanctions Policy on a registrant’s insight and remorse, in particular the extent to which there is recognition of the deficiencies found proved and the demonstration of a willingness to address them.

78. As a preliminary point, the Panel wished to note the context within which SLTs, such as Ms Fay, operate generally.  SLTs are not just involved in treating speech and language difficulties, but their work in dysphagia has implications for the long term health and nutrition of service users.  SLTs are also involved with service users at risk of aspiration, which can lead to pneumonia and death.  Deficiencies in the practice of a SLT can, therefore, put service users at risk of serious harm.

79. Additionally, the Panel placed emphasis on the importance of multi-disciplinary team working.  Failures in communication with colleagues and, particularly, in ensuring that service users’ casefiles are up to date, complete and accurate (both in terms of observations and clinical reasoning) have implications for service user safety where, for example, another professional needs to take action or make decisions for a particular service user. 


80. The Panel considered the aggravating and mitigating factors in this case.  In relation to aggravating factors the Panel has already identified the range of deficiencies in Ms Fay’s practice, the extended period over which those deficiencies persisted, the inability or unwillingness of Ms Fay to sustain any improvement in her practice – despite additional supervision and support – and her lack of remorse or remediation.  In the Panel’s view, a further factor was the lack of insight demonstrated by Ms Fay into the seriousness of the concerns raised about her practice.


81. In respect of mitigating factors, the Panel noted that prior to 2009 Ms Fay appeared to have an unblemished professional record.


82. The Panel first considered taking no further action, but decided that, having found a lack of remediation by Ms Fay and an existing risk of repetition, neither public safety nor the wider public interest considerations in this case would be addressed at all by such an outcome. 
83. The Panel took the view that mediation would be an inadequate sanction in the circumstances of this case to address the significant public safety and wider public interest aspects of it.

84. The Panel next considered a Caution Order, but it determined that as such a sanction would not entail any restriction on Ms Fay’s practice it would be wholly inadequate to address the live public safety concerns that the Panel has identified.  Further, Ms Fay’s complete lack of insight and the absence of the slightest evidence of remediation added to the reasons why a Caution Order would be inadequate in this case.

85. The Panel then considered whether imposing a Conditions of Practice Order would be a proportionate outcome.  The Panel noted paragraph 25 of the Indicative Sanctions Policy:


“25. The imposition of conditions requires a commitment on the part of the registrant to resolve matters and therefore conditions of practice are unlikely to be suitable in situations where problems cannot be overcome, such as serious overall failings, lack of insight, denial or matters involving dishonesty or the abuse of service users.”


86. The Panel found proved wide-ranging deficiencies in Ms Fay’s practice, which persisted over an extended period of time, in terms of:
• Her record-keeping and other important administrative tasks intended to ensure the safe, efficient and consistent delivery of Speech and Language Therapy services to service users;
• Her failure to consult, liaise or communicate with colleagues, effectively or at all, which led to service users being put at unwarranted risk of harm;
• The quality of her clinical management/judgment, for example making significant alterations to Service User 8’s care plan without personally undertaking any assessment of him or taking other precautionary measures to ensure that her judgment was based on accurate information;
• The nature of her clinical reasoning or lack thereof to support decision-making, for example in respect of the 72-hour NBM regime she implemented for Service User 1.


87. The Panel considered that the litany of concerns in this case should properly be characterised as ‘serious overall failings’ and it has already identified a total absence of insight, remorse or reflection.  Ms Fay has not expressed any recognition of her failings or any commitment to addressing them.  Furthermore, the Trust had provided extensive support and supervision for Ms Fay during the relevant period without sustained improvement in her practice being achieved.  In the circumstances, the Panel concluded that Conditions of Practice would be inadequate to address the risk to public safety and/or the wider public interest issues in this case.


88. The Panel then considered a Suspension Order, recognising that this would represent a serious and significant restriction on Ms Fay’s ability to practise as an SLT.  The Panel took account of all of the evidence and was mindful of the relevant paragraphs of the Indicative Sanctions Policy.  However, the Panel also noted the provisions of paragraphs 32 and 39 of the Indicative Sanctions Policy:
“32. If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where the registrant has no psychological or other difficulties preventing him or her from understanding and seeking to remedy the failings then suspension may be appropriate.

39. Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as sexual abuse, dishonesty or persistent failure.  Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial.  An inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate”.


89. Whilst not seeking to penalise Ms Fay directly for her failure to engage in these proceedings, the Panel is left in the position of only having her email of January 2015 and such of her views about her failings as are reported by other witnesses.  The email of January 2015, the most recent communication received by the HCPC from Ms Fay, disclosed no acceptance of responsibility or recognition by her of any failings in her practice.  None of this gave the Panel any reassurance that, even following a period of suspension, Ms Fay would take the opportunity to reflect on her proved deficiencies and undertake remedial work.  Elements of the particulars found proved pointed to an attitudinal problem that could be difficult to remediate.

90. The Panel took account of the fact that one of the most concerning aspects of the particulars found proved, relating to Ms Fay’s unilateral recommendation of the 72-hour NBM regime for Service User 1, was the subject of three meetings between Witness 1 and Ms Fay.  The third such meeting occurred some six months after the event, which might have been expected to be long enough for a professional to come to terms with the fact that they may have made a mistake.  Ms Fay’s intransigence over her involvement with Service User 1 suggested strongly to the Panel, in the absence of any other explanation or mitigating factor, that Ms Fay would be unable or unwilling to address her failures and rectify her practice.


91. For the avoidance of doubt, the Panel repeats its findings that the Trust witnesses were only ever engaged in supportive intervention for the benefit of Ms Fay and of the various service users under her care.  Concerns about Ms Fay’s practice were genuine, documented and justified and the Panel discerned nothing improper or unreasonable in those interventions in the circumstances.  The Panel also considered the extent to which it could take account of the health issues asserted by Ms Fay as having a bearing on the case.  However, Ms Fay had not relied on her health issues at the relevant time; she must have been assessed as fit for work on her return from extended sickness absence in November 2009; and she had had ample opportunity within these proceedings to supply detailed information about the nature of her health issues and the impact of them on her practice as an SLT, but she had not done so.


92. The Panel therefore concluded that the necessary and proportionate sanction in the circumstances of this case, both to protect the public and to satisfy the wider public interest issues, was a Striking Off order.  The imposition of any lesser sanction would not, in the Panel’s view, satisfy any of the purposes for which a sanction is necessarily imposed.



 

Order

Order:
That the Registrar is directed to strike the name of Monica Fay from the Register on the date this order comes into effect.

Notes

This Conduct and Competence Committee final hearing took place over 7 days Monday 05 - Thursday 08 October 2015 and Monday 26 - Wednesday 28 October 2015.

Hearing History

History of Hearings for Monica M Fay

Date Panel Hearing type Outcomes / Status
05/10/2015 Conduct and Competence Committee Final Hearing Struck off