Hayley A Gillett

Profession: Occupational therapist

Registration Number: OT51986

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 28/09/2015 End: 16:00 02/10/2015

Location: Health and Care Professions Council, Park House, 184 Kennington Park Road, London, SE11 4BU

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

(As amended)
During the course of your employment as an Occupational Therapist at Waters Park House you:
1. Engaged in a sexual relationship with Service User A.
2. The matters described in paragraph 1 constitute misconduct.
3. By reason of that misconduct your fitness to practise is impaired.

Finding

Preliminary Matters:
Amendment of the Allegation:
1. The HCPC applied for the Allegation to be amended. The Registrant had been given advance notice of the proposed deletion of the dates within the stem of the Allegation. It was advanced that this amendment was required, in fairness to both parties, as there was insufficient evidence as to the exact dates that the relationship started and finished. The HCPC stated that it is not certain that such level of specification is required given that there has been an admission of the core substance of the Allegation, that there was a sexual relationship.
2. The Panel noted that within the Registrant’s representations before this Panel, the Registrant had taken issue with the dates incorporated within the terms of the Allegation. In her representations to the HCPC, she acknowledged that there had been a relationship between the Autumn of 2010 and August 2013.
3. The Panel was conscious that there is public interest that this matter is prosecuted so far as it is fair and reasonable to do so. That public interest would be frustrated if the Allegation failed due to an inaccurate particularisation of dates. Further, it would be unfair to the Registrant for dates which were wider, or inaccurate, to be relied on. As currently drafted the Allegation alleges that the Registrant had a relationship during the whole time of her employment (between July 2009 and July 2014) which is not the admitted position.
4. The Panel has accepted legal advice on this issue and is relying on its inherent power to amend the Allegation provided that it does not cause any injustice and is not prejudicial to the Registrant. The Registrant has not raised an objection to the amendment. The Panel has balanced the public interest and that of the Registrant and accepted the proposed deletion of the dates.

Background:
5. The Registrant was employed as an Occupational Therapist, at Waters Park House (WPH), from 27 July 2009 to 7 July 2014. She was responsible for arranging therapy input and co-ordinating care for service users who suffered from neurological disorders or acquired brain injury.
6. The Registrant had been working with Service User A, at WPH, whilst he was living in a supported living environment, Still Waters. The Registrant worked with a range of healthcare professionals to assist Service User A to manage his needs. Service User A was part of the Registrant’s caseload from the time she started working at WPH in July 2009. The Registrant has admitted that sometime in the autumn of 2010, she started a sexual relationship with Service User A. She has stated that this relationship came to an end in August 2013.
7. In March 2014, Service User A attended a General Practitioner (GP) appointment with Dr Peter Leman. At the GP appointment, Service User A disclosed that he had been having a sexual relationship with the Registrant. In light of this disclosure the case was referred to the Safeguarding Team at Plymouth City Council (PCC) and WPH was told about the incident. On 24 March 2014, WPH took the decision to suspend the Registrant while the Safeguarding Investigation was undertaken at PCC.
8. As well as being reviewed by the Safeguarding Team of PCC, the matter was referred to the Police. As part of the Police investigation a number of greeting cards and notes were reviewed, as well as intimate photographs on Service User A’s mobile phone. The Police investigation concluded that no further action be taken, as it was established that Service User A had capacity to consent to a sexual relationship and therefore no apparent crime had been committed.
9. The PCC safeguarding investigation concluded in June 2014. WPH was advised to take further steps to safeguard service users. WPH held a disciplinary investigation hearing in July 2014, at which the Registrant submitted a written statement, admitted to having a sexual relationship with Service User A, and resigned from her position as Senior Occupational Therapist.
10. The matter was then referred by PCC to the HCPC on 7 April 2014.
11. The Registrant admitted the nature of her relationship with Service User A and that it constituted misconduct during WPH’s disciplinary process, and: the HCPC preparatory stages of this matter
Decision on Facts:
12. Before the Panel sets out its finding on facts, the Panel confirms that it had regard to the fact that the burden of proof is on the HCPC to prove the Allegation to the requisite standard, namely the civil standard of balance of probabilities.  There is no burden on the Registrant to disprove anything.
13. The Panel heard from two live witnesses on behalf of the HCPC.
14. CM, Director of Clinical Services at WPH. She was the Registrant’s line manager. She confirmed to the Panel the fact that neither she nor any other member of WPH staff, had heard, or suspected, that there had been a relationship between the Registrant and Service User A. In cross examination, she admitted that she tendered pastoral care to the Registrant following the internal disciplinary hearing in which the Registrant had stated that she had been abused and threatened by Service User A. CM raised these matters on behalf of the Registrant as a safeguarding issue. This was a potential blurring of boundaries in the role she had at that time, in that shortly after this disclosure she contacted the Registrant and offered her help and support ‘as a friend’.  In response to a question from Mr Daniel, CM stated that she considered Service User A’s symptoms were not genuine and that he was not a vulnerable person. The Panel noted that Service User A’s diagnosis and symptoms were still being questioned by specialists and CM is not qualified to make this diagnosis. There is also no evidence that CM had taken steps to confirm her belief that Service User A was ‘faking’ or ‘overstating’ his condition. The Panel found her evidence consistent, however, some aspects had been unreliable.
15. JM, Safeguarding Chair, PCC. He managed the Safeguarding process once the allegation was referred to PCC. In his witness statement he drew attention to the ‘No Secrets’ Guidance issued by the Department of Health in 2000, which stated that a safeguarding concern arises where an adult, over the age of 18, who is in receipt of community care or local authority services, is at risk, or unable to protect themselves from a risk of harm. He was able to confirm that the Police had not questioned the Registrant after it was established that there was no evidence of a crime. JM had conducted the case conference meeting in which it was decided that WPH were to review and strengthen its safeguarding measures to ensure that they were able to protect clients and staff. He had no direct role in the fact gathering or report writing and so had little or no input in the factual investigation. The Panel considered that his evidence, limited as it was to the process, was credible and assisted the Panel.
16. The Registrant did not give evidence. Whilst the Panel appreciated that it could not draw any adverse inference from this, conversely the weight the Panel could attribute to the Registrant’s written representations, which were not sworn statements, was limited. The Panel had no opportunity to question the Registrant and test her evidence.
17. The Registrant called on her behalf one live witness, KM, who had been a Therapy Assistant during the period 2011 to 2014. Her evidence went more directly to the issue of the Registrant’s professional abilities. The Panel found her to be a thoughtful witness who gave honest and straightforward answers to questions. Her evidence gave the context to the Occupational Therapy work situation at WPH at that time. KM confirmed that the Registrant had been working under pressure owing to vacancies in the number of Occupational Therapists. Her evidence had been balanced and she had easily acknowledged and understood the seriousness of the Registrant’s actions. KM identified Service User A as a vulnerable person.
Particular 1 – proven
18. The Panel had the unusual situation that the two people able to give personal testimony to the relationship, its nature, and how long it had lasted, did not give direct evidence to the Panel. Service User A’s allegations are contained within documentation prepared or reported by others, particularly that of Service User A’s GP. The Registrant’s representations were based on documentation she prepared for the Disciplinary Hearing and her representations to the HCPC at the Investigating Panel stage.
19. The main evidence on the allegation set out in particular 1, comes from the Registrant’s admission; the copies of the cards and notes sent to, and retained by, Service User A; and the two intimate photographs retained by Service User A on his mobile telephone. CM was able to confirm that she had been shown the two photographs and that one of them had a full facial shot from which she was able to identify that the unclothed individual in the photograph was the Registrant. In CM’s subsequent interview with the Registrant she had been told by the Registrant that the allegation was true and that the Registrant had engaged in a sexual relationship over several years.
20. This evidence was, sufficient to establish the matter set out in Particular 1 proven to the requisite standard.
Decision on Grounds:
21. The HCPC stated that these were serious matters which had exposed the service user to potential harm, as well as being matters which undermined the Registrant’s core responsibilities for Service User A’s wellbeing.
22. The Registrant has admitted that her actions amounted to misconduct.
23. The Panel took into account the representations of the parties and the advice given by the Legal Assessor. The Panel referred to the relevant guidance issued by the HCPC within the Standards of Conduct, Performance and Ethics and the Standards of Proficiency for Occupational Therapists.
24. The Panel has concluded that Service User A was a vulnerable individual. Whilst the Panel accepted that Service User A had capacity to consent to the relationship, his presentation was complex, as evidenced by the medical reports before the Panel. KM accepted that Service User A was vulnerable and she put forward the clear and simple reason as being ‘he was in the care of the local authority.’
25. In assessing which professional standards have been breached the Panel took into account the evidence that the Registrant had put Service User A, herself, and her colleagues at risk from her failure to disclose the allegedly volatile, and at times dangerous, nature of Service User A’s actions and reactions. She had not disclosed the threats to his safety or to her safety, for instance by putting a knife to the Registrant’s throat.
26. In her written representations to the HCPC, the Registrant admitted that there was a causal link between her relationship with the Registrant and the two attempts he had made to commit suicide.  She states:
‘There were occasions when I tried to end the relationship and have the service users care reassigned. On two occasions, he took an overdose apparently from illegally obtained drugs – and I felt compelled because of my concern for his welfare to continue to care for him and to eventually resume the relationship which he was demanding.’ 
27. These were other occasions when the Registrant should, in accordance with her duty of care for her service user, have informed others of the underlying reasons for Service User A’s suicidal thoughts. Her relationship with this service user was therefore causing him not only potential harm, but actual harm.
28. Further, there is clear evidence from the Registrant that, later in the relationship, she feared being exposed. She had therefore, by continuing the relationship and maintaining her silence, put her interests ahead of those of Service User A. As the HCPC stated, each and every day the Registrant had the opportunity to reveal the fact that she had a personal, sexual, inappropriate relationship with a service user.
29. There was a serious imbalance of power between Service User A and the Registrant. The Registrant had access to detailed information about Service User A and she was able to influence his access to services. The relationship was an abuse of that balance of power and a serious breach of trust.
30. The Panel has concluded that the Registrant’s acts and omissions are therefore in breach of the following provisions:
HCPC Standards of Conduct, Performance and Ethics:
• 1 - You must act in the best interests 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.
• 13 - You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you and your profession.
HCPC Standards of Proficiency for Occupational Therapists
• 2 - Be able to practice within the legal and ethical boundaries of their profession.
• 4 - Be able to practice as an autonomous professional exercising their own professional judgment.
• 4.1 - Be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem.
• 9.6 - Understand the need to adopt an approach which centres on the service user and establish appropriate professional relationships in order to motivate and involve the service user in meaningful occupation.
• 15 - Understand the need to establish and maintain a safe practice environment.
• 15.1 - Understand the need to maintain the safety of both service users and those involved in their care.
31. Whilst breaches of these provisions do not automatically amount to misconduct, in the Panel’s view they support the Panel’s finding that the Registrant’s actions amount to serious misconduct.
32. In reaching this decision, that it was a very serious case of misconduct, the Panel noted that this inappropriate relationship continued over a period of three years without any colleague having any suspicions that there had been a personal relationship. It has been put forward by the Registrant that her conduct in work showed no signs of deterioration and therefore there had been no adverse impact on her performance and in turn on service users.
33. The Panel heard that the Registrant was provided with external supervision with an experienced Occupational Therapist. This supervision was to be arranged by the Registrant to suit her needs and commitments. WPH stated that they provided funding for supervision to be on given on a monthly basis. In her written representations to this Panel, the Registrant has explained that she had been unable to control what eventually became in her view, an abusive relationship. There is no evidence before this Panel that the Registrant used her supervision sessions to seek support and guidance on this issue, or to seek help as to how to deal with an allegedly manipulative service user. There is no evidence that the Registrant sought guidance from any source about the impact her relationship was, or may have had, on the Service User, or herself. Whilst witnesses attested to her clinical competence, the Panel were troubled by the lack of openness.
34. The Panel considers that the Registrant was not only at fault in starting the inappropriate sexual relationship but also in not taking steps to end it. It was stated on her behalf that she had not thought through where this relationship was going. It was advanced by the Registrant in her written representations that at the start, this had been a consensual relationship and one which on several levels was of mutual benefit. In making this statement, the Registrant has not acknowledged that even within a well-founded relationship, when it is ended, there is a potential for emotional and psychological impacts on either party. In this instance that impact was on an individual which the Registrant had, in her written representations, confirmed was suicidal. In the Panel’s judgment, this lack of insight into the potential for harm, coupled with the length of time over which this relationship was allowed to continue, makes the misconduct serious.
Decision on Impairment:
35. In reaching its decision the Panel took into account the following:
i. In relation to impairment, the Panel reminded itself that the test of impairment is expressed in the present tense, that fitness to practise ‘is impaired’.
ii. Whether the Registrant’s fitness to practise is impaired is a matter of judgment for the Panel.
iii. Rule 9 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (as amended) provides ‘where the Committee has found that the health professional has failed to comply with the standards of conduct, performance and ethics established by the HCPC under Article 21(1)(a) of the Order, the Committee may take that failure into account, but such failure will not be taken of itself to establish that the fitness to practise of the health professional is impaired.
iv. The advice of the Legal Assessor
v. The guidance issued by the HCPC entitled ‘Finding that fitness to practise is impaired.’
36. In relation to the personal component, the Panel noted that the references before it all attest to the Registrant being an exemplary practitioner. There is nothing to suggest that there were any concerns about the Registrant’s competence before or at the time these events came to light. The matter before this Panel relates solely to the issue of misconduct, on which issue the Panel heard that the Registrant has not been in practice since these matters were brought to light. This has resulted from the imposition of an interim order. This has meant that the Registrant has not had the opportunity to demonstrate that any lessons she has learnt have been put into practice as an Occupational Therapist.
37. Whilst the Registrant has identified some courses which would be of assistance to her practice in the future, she has not undertaken these yet. The Panel noted that the Registrant had undertaken, at her own cost, recent personal counselling for a period of six months and the Panel received a report from her counsellor. There is no evidence of CPD, recent training, professional reading or reflective essays before the Panel. The Panel has no evidence on the issue of how the relationship between the Registrant and Service User A had started. There is nothing to indicate what had triggered the conversion of a professional relationship into one of a personal, intimate nature. There is correspondingly little evidence of the Registrant having reflected on how this situation had arisen and at this stage there is no evidence before the Panel of lessons learnt.
38. The Registrant has stated that prior to working with Service User A, and during her time treating him, she had not received relevant training from her employer to enable her to deal with a manipulative service user. She placed the responsibility for this lack of knowledge and skill on her employer. This however ignores the fact that at the time she had personal responsibility for her professional autonomy and that as a senior practitioner she had an enhanced duty to ensure she had the correct level of skills to perform her role. It is also a core skill of a qualified Occupational Therapist to maintain professional boundaries. CM confirmed that the Registrant had ready access to WPH’s policies on safeguarding, bullying and whistleblowing. In addition, the Panel noted from the Registrant’s job description that one of her key tasks was to work within the College of Occupational Therapists (COT) code of ethics and professional conduct that were relevant at the time. There is no evidence that subsequent to these events, the Registrant has taken personal responsibility for identifying the steps she needs to take to provide herself with this specific area of knowledge and skill.
39. Further, the Registrant’s statement that ‘I have always had his wellbeing at the forefront of my mind and I believe caused him no harm at all at any stage’; shows a lack of insight into the risk of harm. This statement is inconsistent with her earlier statement in the same representations that the Service User had undertaken two attempts at suicide. The Panel does not accept that the Registrant was ‘giving an explanation of what happened’ but rather was making an attempt to consciously distance herself from the reality of the true situation. In addition the Panel has not received any direct evidence from the Registrant which could be tested, in relation to her genuine remorse, apology and regret for her misconduct.
40. The Panel has therefore concluded that there is little evidence that the Registrant has taken steps to remedy her misconduct. This being the case, the Panel concluded that there is current impairment on the personal component.
41. In relation to the public component, the Panel considers that these matters are so serious, and so detrimental to the reputation of the Registrant and her profession, that a finding of impairment is warranted in the public interest. Further these matters are so serious that the Registrant’s acts and omissions would undermine the public confidence in the regulatory process and the maintenance of professional standards if a finding of impairment were not made.
Decision on Sanction:
42. The Panel has taken into account all documentation before it, including the personal references. It has accepted the advice of the Legal Assessor and received the parties’ representations. It has made reference to the Indicative Sanctions Policy issued by the HCPC.
43. Within the Registrant’s written representations she has referred to a number of matters in support of her ‘explanation of the events’ which could be construed as external factors that had made her position more difficult. At this stage the Panel has looked at these in turn.
i. The Registrant stated she felt ‘compelled because of my concerns about his welfare’, to resume her relationship with the service user. She described herself as unable to manoeuvre herself within, or out of, the relationship. The fact that the Registrant did not seek further advice and help from her supervisor, colleagues or third parties has resulted in those concerns about the service user’s welfare remaining unknown until after the relationship had been exposed. Had the Registrant sought guidance she would have been better able to achieve her stated ambition of ending the relationship. Continuing the relationship, and reengaging with this service user, had in fact increased the potential for harm.
ii. There have been references to her attempts to distance herself from this service user by reassigning his case to other therapists. The evidence of KM and CM was that that this service user’s treatment was delivered by a number of practitioners. This was a reflection of how many OT practitioners were available at any given time. There is no record of a request by the Registrant to stop treating this service user.
iii. The Registrant’s written evidence is the only source for the statement that Service User A had issued personal threats and made threatening gestures towards her.  The evidence of KM was that this service user was a charismatic person with high cognitive skills. KM had heard him get angry on the telephone when his services had not been delivered as planned. There was however no other evidence that this service user was physically aggressive, or any more challenging than other service users being treated at WPH.
44. To assist it in its decision-making process, the Panel has identified the following features in this case.
Mitigating
• There is no evidence that the Registrant’s professional care for other service users was affected by the fact of her relationship with Service User A. There is a body of supportive references attesting to the Registrant’s dedication, level of care and professional abilities.
• As soon as she was confronted with the existence of the relationship by Ms Murphy, the Registrant acknowledged the extent, length, and nature of the relationship with Service User A. In these proceedings she has admitted the fact of the allegation and that her behaviour amounted to misconduct.
• She has engaged with the HCPC process throughout and had previously complied with her employers’ disciplinary process.
• She has taken the initiative to seek independent counselling.
• She has indirectly stated her regret for entering into the relationship.
Aggravating
• The Registrant initiated the relationship with Service User A.
• The length of the relationship; it had not been a short term affair. There is evidence that notwithstanding her regret at starting the relationship she reengaged with the service user.
• The extent of the concealment. Not only the length of time that this matter was kept from others but the active steps that must have been taken to ensure that there was no disclosure.
• The Registrant had extended the range of the relationship to include involvement with her family.
• There were opportunities for her to rectify the position without disclosure, such as leaving her position.
• The service user was a vulnerable person who was within the Local Authority’s care.
• There had been an abuse of trust, and an abuse of power between the Registrant and this service-user.
• The Registrant had not been the source of the disclosure. There is no evidence that she would have disclosed the existence of this inappropriate relationship.
• Did not disclose to third parties the reasons for Service User A’s suicide attempts and suicidal thoughts.
• She has consistently put her interests of non-exposure before those of the service user.
• Her actions had resulted in not just potential harm, but on two occasions, actual harm. There was also the potential for long term emotional and psychological harm to this service user.
• The Registrant failed to demonstrate the level of understanding of responsibility she had as a senior practitioner to protect others and to maintain standards.
• Her continued non-disclosure had placed herself, and Service User A, at the risk of further harm.
• Lack of reflection and insight into her behaviour and failed to demonstrate an understanding of the risk and harm to Service User A.
• There were attempts at shifting blame onto others and circumstances. For instance, she stated that her predecessor had not warned her of the dangers that this service user may pose and she had not received specific training.
Sanction:
45. As directed the Panel started its considerations by considering the range of sanctions in ascending order.
46. The Panel applied the principles of proportionality balancing the interests of service users and the wider public with those of the Registrant.
47. The Panel considered that taking no further action was not proportionate. Mediation was not appropriate. The matters identified were too serious for the imposition of a Caution Order, a level of sanction that would provide no service user protection and would not satisfy the wider public which includes the deterrent effect to other registrants; the reputation of the profession concerned; and public confidence in the regulatory process.
48. The Panel then gave careful consideration to the appropriateness of a Conditions of Practice Order. The Panel was mindful that conditions are not appropriate in a situation where the misconduct arises from an abuse or breach of trust, as in this instance. Further, this Panel does not consider this level of sanction proportionate, as it is insufficient to reflect the level of service user harm caused or the wider public interest.
49. The Panel considered whether a period of suspension would be sufficient and would provide the Registrant with a period during which she could resolve or remedy her failings.
50. Whilst the Registrant has expressed her regret for her actions, she has been unable at this hearing to demonstrate that she has gained a sufficient level of understanding of the magnitude of her misconduct. As a consequence, the possibility of repetition remains. The lack of insight was such that this Panel is not convinced that there are steps which this Registrant will be able to take to remedy her failings. In addition the Panel considers that this sanction would be insufficient to serve the public interest or to act as a deterrent to other practitioners.
51. In the Panel’s view the Registrant’s actions are deplorable, resulting as they did on two occasions in actual harm to a service user. The Registrant has consistently and persistently put her interests above those of a vulnerable service user. The degree of concealment, and the period over which it was maintained, are most concerning. As stated above, there is no evidence that at any point would the Registrant have made a voluntary disclosure. The Panel has therefore come to the decision that the only proportionate and appropriate measure in this instance is the making of a striking off order.

Order

That the Registrar is directed to strike the name of Hayley A Gillett from the Register on the date that this order comes into effect

Notes

This Conduct and Competence Final Hearing took place at the HCPC on 28 - 30 September 2015.

Following announcing its decision on sanction the Panel decided to impose an interim suspension order to cover the 28 day appeal period.

Interim Order:
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.

Hearing History

History of Hearings for Hayley A Gillett

Date Panel Hearing type Outcomes / Status
28/09/2015 Conduct and Competence Committee Final Hearing Struck off