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1. The Panel took into consideration the submission of Miss Alexis. It accepted the Legal Assessor’s advice and it exercised the principle of proportionality. The Panel noted the provisions of Rule 10 (1) (a) of the HCPC’s procedural Health Committee Rules that it would be in the interests of justice and for the protection of the Registrant (amongst others) to allow the hearing to be in private rather than in public. The Panel also took into consideration the HCPC’s Practice Note on this.
2. The Panel concluded that the substance of the Registrant’s Health Committee case related to personal, sensitive and confidential issues about her health conditions. Therefore, as the Panel considered that the factual matrix was full of such references, if they were to be heard in public this would breach the medical confidentiality that the Registrant would normally expect when consulting medical practitioners. This would not adequately protect the Registrant and also, in the Panel’s opinion, would not be in the interests of justice.
3. For these reasons, the hearing of this case will be entirely in private.
4. The Panel noted that the Registrant’s former legal advisers informed the HCPC that the Registrant had changed her address when they wrote to the HCPC on 16 December 2015 to explain that they were no longer instructed by her. Therefore, the HCPC sent the Notice of Hearing letter dated 12 February 2016 to the last known registered address, as well as the additional address from her legal advisers. It also sent the Notice letter by email. The Notice referred to the time, place and date of this hearing. The Panel also noted that it is for registrants to keep their regulator up to date with any new address and for the regulatory body to ensure good, effective service of a hearing. Once notice has been sent by first class post, dated no later than 28 days before the hearing and to the last registered address of the Registrant, the regulator has proved good service. In this case, those components have been met and, having accepted the advice of the legal assessor, the Panel has determined there is good service.
Proceeding in the Absence
5. The Panel accepted the advice of the Legal Assessor.
6. The Panel noted that it must approach the issue of proceeding in the absence of the Registrant with the utmost care and caution. Fairness to the Registrant is of prime consideration but also fairness to the regulator and the public’s interest, such as to satisfy the main statutory objective of the protection, promotion and maintenance of the health and safety of the public. In that regard, the Panel note that the fair, economical, expeditious and efficient disposal of the allegation made against a Registrant is of very real importance.
7. The Registrant has not responded to the letter of Notice of Hearing. She has not engaged in the process so as to effect a new medical report to give a Health Committee Panel up to date information on her health condition. The Registrant has not applied for an adjournment and there is no information from the Registrant that an adjournment would result in her attendance. In the Panel’s view, the Registrant has voluntarily absented herself from proceedings. The Panel determined that proceeding in the absence of the Registrant would achieve a prompt, fair and proportionate outcome.
8. The Registrant worked as Biomedical Scientist (BMS) at Stockport NHS Foundation Trust since 2002 and has been a Band 7 since 2004. In 2010, concerns arose about her behaviour. Despite many and various health and capability processes by the Trust from 2010 to 2013, the Registrant was dismissed on the grounds of incapacity on 26 February 2013.
9. On 26 March 2012, the Trust agreed a 6 week staged return to work for the Registrant starting 16 April 2012. Although at the beginning the Registrant seemed to be responding well, her conduct became a concern.
10. On 14 May 2012, the Registrant met with her line manager to discuss why she was not achieving the desired outcome of the phased return to work. Meetings continued to try to resolve the issue. The Registrant’s position within the Trust was kept under review.
11. The Trust took disciplinary action which culminated in the Registrant’s dismissal on the grounds of incapacity on 26 February 2013. Her appeal against that decision failed.
12. On 13 January 2014, the HCPC Investigating Committee determined that there was a case to answer on health grounds. The HCPC commissioned a medical report by Dr Nadeem which was produced and dated 3 October 2014.
13. The HCPC decided that this was an appropriate case for a consent disposal and the matter was listed for a hearing on 14 August 2015. However, the Health Committee Panel on that occasion refused to accede to the Consent Order disposal because Dr Nadeem’s medical report was not sufficiently up to date to assess the Registrant’s health condition.
14. The HCPC, on four occasions, between 20 October 2015 and 8 December 2015 set up appointments for the Registrant to see Dr Nadeem. On each occasion, the Registrant did not arrive and/or provide a reason why she could not attend. After the second failed attempt, the HCPC warned they would only make one more appointment due to the cost incurred. However, a third and fourth appointment was scheduled by the HCPC and the Registrant failed to arrive.
15. On 16 December 2015, the Registrant’s legal advisers wrote to the HCPC to state that they were no longer instructed by the Registrant.
16. The HCPC subsequently fixed the date for the final hearing.
Decision on Facts:
17. The Panel heard oral evidence from MD, the Registrant’s line manager, and considered all the written evidence presented, including Dr Nadeem’s report and the information previously provided by the Registrant, including her witness statement for the hearing of 14 August 2015.
18. The Panel found the witness, MD, credible, clear and fair.
19. The Panel also heard the submission of Miss Alexis for the HCPC and it accepted the Legal Assessor’s advice. In relation to the facts, the Panel noted that the HCPC has the burden of proving the facts on the balance of probabilities.
20. In the Panel’s judgement, on the balance of probabilities, the Registrant is currently suffering from a health condition and there has been no evidence produced to gainsay that.
b): Not proved.
21. The Panel determined that there was insufficient evidence to find b) proved.
22. By reason of the Registrant ’s health condition, the Panel concluded that she has breached the HCPC’s Standards of Conduct, Performance and Ethics at Paragraph 12, as follows: “You must limit your work or stop practising if your performance or judgement is affected by your health.”
23. The Panel also concluded that the Registrant’s health condition, as proved, breached the HCPC Biomedical Standards of Proficiency (2007) at Paragraph 1.a.8, as follows: “be able to practise within the legal and ethical boundaries of their profession.”
24. A professional must be alert to the effects of his/her own ill health on patients and the effect it has on public confidence of the profession. The Registrant did not inform her employer at any time about her health condition, so that, at times, she was in clinical practice dealing with patients’ investigations and potential diagnoses which placed patients at risk of harm.
25. Accordingly, the Panel have found that in breaching the above standards, the Registrant suffers from a health condition.
Decision on Impairment:
26. In determining impairment, the Panel accepted the Legal Assessors advice and made its own independent judgment.
27. The Panel considered that the Registrant’s health condition, as proved, is capable of being remedied. Nevertheless, it is the Panel’s judgement that she has not progressed sufficiently. This is evidenced from her behaviour with her employer and with her regulatory body, the HCPC, when it attempted, unsuccessfully, on four occasions to set up another appointment with Dr Nadeem for a report for this hearing. This appointment was pivotal in providing up-to-date information on her current health.
28. It is clear to the Panel that the Registrant has insufficient insight into the effects of her condition and its impact on others, including patients. The Registrant has failed to demonstrate she has successfully addressed her condition and as such she remains a risk to patients and to the reputation of the profession.
29. Thus, the Panel determined that the Registrant’s fitness to practise is impaired.
Decision on Sanction:
30. In reaching its decision on sanction, the Panel took into account the submission from Miss Alexis for the HCPC and the documentation before it, including the Registrant’s communications by her then legal advisers to the HCPC. The Panel noted the testimonial in that bundle and took into consideration all the medical reports on her condition at various times from 2010 to 2014. The Panel accepted the Legal Assessor’s advice and it exercised the principle of proportionality. The Panel also paid regard to the HCPC’s Indicative Sanctions Policy in reaching its decision. The Panel also noted that sanction should not be primarily punitive.
31. The Panel identified the following aggravating and mitigating factors:
• The Registrant’s lack of any, or any sufficient, insight from 2010 to present day;
• The Registrant’s denial of her health problem and consequent lack of engagement in 2015/16 so as to allow an updated medical report to be prepared for this hearing;
• The Registrant’s failure to take action or to remediate her ill health, so as to prevent the potential ultimate risk to patients when she worked as a BMS;
• The lengthy period of time (2010 to present day - approximately 6 years) over which this particular health problem has taken place;
• The potential risk to patients from the Registrant’s practice;
• The risk of repetition.
• The Registrant’s unblemished career as a BMS until her health problems impacted on her practice, from approximately 2010;
• Her initial intention to engage with the HCPC and the medical profession to try to improve her health condition;
• Personal problems that impacted on her ability to engage in the help being offered to her by her former employer;
• No direct patient harm.
32. The Panel first considered taking no action, mediation and a Caution Order and rejected these options. The Panel was of the view that without any means of monitoring her medical condition, there remained a risk to patients if she were to be permitted to practise in an unsupervised way. The risk of relapse and repetition of these events was very high, as proved by the previous relapses. The Panel has concluded that this health matter is serious and that the aggravating factors outweigh the mitigating factors. To that end, therefore, the Panel determined that these options were insufficient to protect the public and also insufficient to mark the wider public interest in upholding the confidence that the public is entitled to have in the profession and in this regulatory process.
33. The Panel next considered imposing a Conditions of Practice Order. There could be realistic, enforceable and workable conditions that could be imposed on this Registrant’s practice that could relate to her health problems in positive way within a restricted practice scenario. However, the history of her fluctuating, inconsistent and unreliable engagement in schemes to help her improve her health condition means that there is no guarantee that the Registrant would engage in this sanction. If she did not, and the Panel considered that this would be highly likely at this time, there would be a danger that the Registrant could still be at large in practice whilst in her precarious health condition, potentially putting the public/patients at risk. This is compounded by the fact that she has totally disengaged more recently and has dis-instructed her previous legal advisers in December 2015. The Panel has no confidence that, at present, the Registrant has any, or any sufficient, insight into the consequences of her health condition, so as to be willing to engage in a Conditions of Practice Order sanction. Therefore, the Panel has rejected this sanction option
34. The Panel next considered the one remaining sanction available to it; that of a Suspension Order. The Panel noted that, being a Health case, there is no power at this time for the Panel to impose a Striking Off Order. In the Panel’s judgement, until the Registrant shows an ability to engage positively with methods to improve her health condition, the public requires protection from her performance as a BMS. In addition, for the same reasons, the public’s confidence in the profession must be maintained, and that would be undermined without a sanction to prevent this practitioner from working as a BMS, whilst in her present precarious health state. The reputation of the profession has been harmed by her lack of insight and lack of willingness to cooperate in a consistent manner with help offered. The Panel has concluded that this should be reflected in a sanction that can mark that, whilst also protecting the public. Hence, the Panel has determined that a Suspension Order of 12 months is the most proportionate and appropriate sanction. The Panel has concluded that the maximum period is the most proportionate and appropriate, as the Registrant has failed to engage more recently. Although she may decide to do so in the future, at present, the Panel has no evidence that she would be likely to do so. If the Registrant decides to engage with this process in the future and to remediate her position, so as to be able to practice as a BMS safely and efficiently again, the Panel would advise her to consider producing proof of her current health status for the Review Panel. This might include, for example, evidence in the form of medical investigations and treatment relating to any progress she has made within the 12 months.