Miss Marion Hazel Le Cornu

Profession: Physiotherapist

Registration Number: PH25781

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 18/04/2016 End: 16:00 26/04/2016

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

During the course of your employment as an Physiotherapist at Jersey General Hospital, between November 2012 and May 2013, you:

 

1) On the 23rd November 2012, in respect of patient A;

 

a) you did not conduct an effective abdominal assessment in that you advised the patient to get into a brace position

b) you did not identify this patient’s main problem

c) you did not suggest relevant techniques to strengthen her abdominal muscles and function

 

2) On 29th November 2012, in respect of patient B;

 

a) you did not establish that this patient had been on bed-rest for one week and not referred for physiotherapy input

b) you did not establish any information from the midwife in respect of the patient’s bowel movements

c) you did not identify the patient’s main problem

d) you gave the patient pelvic floor exercises, which they had been specifically advised not to do due to a risk of preterm labour at 27 weeks of pregnancy

 

3) On 30th November 2012, in respect of patient C;

a) you did not position the patient appropriately in order to make a thorough assessment of the abdominals

b) you did not advise the patient to complete pelvic floor exercises

c) you offered the patient contradictory advice about the forms of exercise she should undertake after giving birth

 

4) On 17th January 2013, in respect of patient D;

a) you did not look up the patient’s x-ray as part of the assessment

b) you did not establish that the patient had a lobe removed

c) you documented that you had carried out the Active Cycle of Breathing Technique (ACBT) when you had not done so

d) you did not educate the patient on the importance of self-clearing chest

e) you did not educate the patient on mobilising

f) you did not complete adequate notes in that;

i) you wrote notes about the patient's condition in the section reserved for the treatment plan

ii) you did not complete adequate notes in that you did not record detail of treatment plan for the patient

 

5) On 21st January 2013, in respect of patient E;

a) you did not establish that the patient had suffered a number of falls

b) you did not establish that the patient had low blood pressure, as noted in the patient’s chart

 

6) On 22nd January 2013, in respect of patient U;

a) you did not establish whether the patient had stairs at home

 

7) On 23rd January 2013, in respect of patient F;

a) you did not adequately assess the height of the patient's walking aid when assessing the patient's mobility

 

8) On 31st January 2013, in respect of patient G;

a) you continued to walk the patient despite him swaying upon standing

b) you did not document that the patient had reported he sometimes felt dizzy and had blurry eyes upon standing

c) you did not document that the discharge of the patient might be unsafe given his presenting condition.

 

9) On 6th February 2013, in respect of patient H;

a) you did not look at the latest medical notes in your assessment of the patient

b) you did not look at the x-ray report in your assessment of the patient

c) you did not ascertain the ROM or power in the patient’s hip or left leg before getting the patient to stand and walk

d) you did not make an objective and/or thorough assessment of the patient's ability to balance in order to determine the most appropriate aid

 

10) On 19th February 2013, in respect of patient I, you were not able to carry out a neuro assessment in an appropriate manner

 

11) On 14th March 2013, in respect of patient J;

a) you did not carry out an objective assessment of the patient's mobility

b) you did not ascertain the strength of the patient when making your assessment

c) you did not produce adequate notes for the assessment of the patient's mobility

 

12) On 18th March 2013, in respect of patient K, you;

a) did not conduct an assessment of the patient to ascertain where her pain was located.

b) did not document your findings on a body chart

c) did not provide advice and/or recommend treatment to the patient to alleviate her pain

d) inappropriately documented that the patient should be sent an 'at risk' letter.

 

13) On 18th March 2013, in respect of patient L;

a) you did not read the previous Ax and Rx plan when making your assessment

b) you did not assess the patient in standing as part of your assessment

 

14) On 18th March 2013, in respect of patient M;

a) you did not produce adequate notes for the assessment made, as you did not document that the patient wanted advice on how to progress abdominal exercises

b) you did not provide appropriate advice to the patient on how she could progress abdominal exercises

c) you did not provide appropriate advice against doing sit-ups

 

15) On 20th March 2013, in respect of patient N;

a) you did not establish the adequate SIN factor as part of your assessment

b) you did not provide adequate and/or correct notes of the assessment in that you stated that the patient had lower back pain

c) you did not conduct a complete neuro assessment

d) you did not gather sufficient information from the patient in respect of cauda equine symptoms

 

16) You were not able to time manage your patient assessments efficiently in respect of;

a) patient D

b) patient E

c) patient I

d) patient P

e) patient Q

f) patient R

g) patient U

 

17) The matters set out in paragraph(s) 1 - 17 constitute misconduct and/or lack of competence.

 

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

Finding

Preliminary Matters

Service

1. The Panel was satisfied on the documentary evidence provided, that the Registrant, Ms Marion Hazel Le Cornu, had been given proper notice of this review hearing in accordance with the Rules. Notice of this hearing was sent by first class post to her address on the Register by letter dated 22 January 2016. The notice contained the relevant required particulars. A copy of the notice was additionally sent to the Registrant via email on the same date.

 

Proceeding in Absence

 

2. The Panel heard the application from Ms Oldfield to proceed in the absence of the Registrant.

 

3. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in the absence of the Registrant was one that must be exercised with the utmost care and caution.

 

4. Having considered the circumstances the Panel determined to proceed in the absence of the Registrant. The reasons are as follows:

 

*   Service of the appropriate notice of this hearing has been properly effected.

 

*   The Registrant has not been in contact with the HCPC since she sent an initial response to the allegations in a letter received on 10 September 2014. ,It follows that the Registrant has not requested adjournment, nor would the Panel suppose that ,there would be any greater chance of the Registrant attending in the future were it to adjourn.

 

*   There is a public interest in proceeding. The Panel was aware that there were witnesses who were in attendance to give evidence and was mindful of the impact on the witnesses if it did not proceed and that memories fade with the passage of time.

 

*   In all the circumstances the Panel was of the view that the Registrant knew or ought to have known of today’s hearing and has voluntarily absented herself.

 

Application to amend charges

 

5.  Ms Oldfield, on behalf of the Council, applied to amend the charges, which had been notified to the Registrant by letter dated 15 February 2016. She submitted that none of the proposed amendments materially affected the case that the Registrant had to meet. She submitted that the amendments were to anonymise patients, delete allegations no longer pursued and further to particularise the charges so as to reflect more accurately the evidence in the witness statements. She extended her application to include correcting typographical errors in charges 8(c) and 14(c) and to renumber the allegations.

 

6.  The Panel determined to allow the application to amend the charges in its entirety. It took into account that, apart from the typographical errors, all proposed amendments had been notified to the Registrant, by letter dated 15 February 2016 and no objection had been received from her. It was of the view that the amendments can be made without unfairness to the Registrant, nor do they represent an under prosecution of the case, in relation to those parts of the particulars not pursued. They properly reflected the likely evidence to be received, according to the witness statements and there was no point in pursuing allegations where there was no realistic prospect of finding them proved.

 

Background

 

7.  The Registrant worked as a physiotherapist at the Jersey General Hospital (the General Hospital), from 1980 until she resigned on 17 May 2013. For the last 20 years of that time, she was employed in the maternity services. She was the only physiotherapist who worked within the maternity services. Her role included working with the midwives at the General Hospital and liaising with other clinicians to assist with incontinence issues and back pain. She was also responsible for assisting patients on the ward after they had delivered to assess their mobility and muscle function.

 

8.  By the Autumn of 2012, concerns had arisen as to the Registrant’s levels of skill and performance and whether they were up to the appropriate standard. A number of informal steps were put in place to investigate and address any issues.

 

9.  From 25 September 2012 to 8 October 2012, senior physiotherapist, Witness 2, shadowed the Registrant. Witness 2 worked in the Urotherapy Clinic in Overdale Hospital, which was on a different site from the General Hospital. Witness 2 also conducted an audit of the Registrant’s record keeping.

 

10.  As a result, a number of alleged weaknesses were identified and a more formal capability process was put in place. This involved a development plan being drawn up in October 2012, a period shadowing other professional colleagues within the General Hospital and training and education being provided. Formal periods of supervision were also put in place. The first was for 6 weeks between November 2012 and January 2013, and was under the supervision of Witness 2, who would complete supervision records in respect of the patient consultations she had supervised the Registrant undertaking.

 

11. Charges 1 to 3 relate to patients seen by the Registrant in the 6 week period between November 2012 and January 2013, whilst under Witness 2’s supervision.

 

12. There was a further period of supervision between January 2013 and March 2013. There were three supervisors during that period, all of whom were senior physiotherapists employed by the States of Jersey Health and Social Services. The supervisors were Witness 5, Witness 4 and Witness 3. Witness 5 worked in the Urotherapy Clinic on a job share basis with Witness 2. Witness 3 and Witness 4 job shared their role as senior physiotherapists on the medical wards within the General Hospital. Each of the supervisors would complete supervision records in respect of the patient consultations which they had supervised the Registrant undertaking.

 

13. Charges 4 to 16 relate to patients seen in the second period of supervision between January 2013 and March 2013.

 

14. The Registrant’s practice was regularly reviewed at meetings with the Operational Manager, Witness 1, and the Registrant’s supervisors. On 3 April 2013 a final review hearing was held, where it was determined that although the Registrant had made improvements, she had not improved to a satisfactory level to allow her to continue working as a physiotherapist. At that point she was given the option of considering an alternative role within the organisation or to proceed with a formal Capability Hearing.

 

15. The Registrant resigned from her position on 17 May 2013, following which the General Hospital referred the matter to the HCPC.

 

16. The Panel heard from the following witnesses on behalf of the HCPC:

 

·          Witness 1 – Operations Manager in the Physiotherapy Department at the General Hospital;

 

·          Witness 2 – Senior Physiotherapist in the Urology Department at the General Hospital and who job shared her role with Witness 5;

 

·          Witness 3 – Senior Physiotherapist in the medical inpatient team at the General Hospital and who job shared her role with Witness 4;

 

·          Witness 4 – Latterly Senior Physiotherapist in the obstetrics and gynaecology team at the General Hospital and who at the time was employed on the medical wards and job shared her role with Witness 3,;

 

·          Witness 5 –Senior Physiotherapist in the Urology Department at the General Hospital and who job shared her role with Witness 2.

 

17. The Panel also had in evidence the letter received by the HCPC on 10 September 2014 from the Registrant, in response to the allegations against her.

 

No case to answer

 

18. At the close of the Council’s case, Ms Oldfield offered no evidence on sub-charges 8(b), 8(c), 12(d) and 14(a). She submitted these four sub-charges alleged that the Registrant had not documented certain elements, when in fact, during the course of the evidence it had become clear that these elements had, been documented.

 

19. The Panel accepted the advice of the Legal Assessor. It accepted that there was evidence within the patient notes that the relevant elements had been recorded, and as such it concluded that there was no realistic prospect that the sub charges would be found proved to the required standard. Accordingly it found that there was no case to answer in respect of the four sub-charges.

 

Decision on facts

 

20. The Panel heard and accepted the advice of the Legal Assessor. It recognised that the burden of proving each individual charge rests always on the HCPC and that the HCPC will only be able to prove a particular charge if it satisfies the required standard of proof: the civil standard, whereby it is more likely than not that the alleged incident occurred.

 

21. The Panel found all of the live witnesses to be honest, reliable and credible. Their overall levels of recollection were good, but all readily admitted that their memory was cloudy on some matters of detail, due to the passage of time, although they were able to refresh their respective memories from the contemporaneous notes they made, or the patient medical records, where available.

 

22. Each of the witnesses gave positive comments about the Registrant’s attitude and hard work during the training and assessment process. In particular, they all said that they had hoped at the beginning of the process that the Registrant would benefit from the assessment and supervision. This led the Panel to conclude that their evidence was fair and balanced. When challenged, each was willing to reconsider their initial positions or maintain their line, as appropriate.

 

23. Charge 1: This related to Patient A, whose presenting condition was that of faecal incontinence. Witness 2 was present during this assessment. Although the Panel did not have the patient records for this patient, it accepted Witness 2’s evidence in respect of what she had observed and the contemporaneous supervision record that she had made.

 

24. Charge 1(a): this is found proved. The Panel accepted the evidence of Witness 2, that the Registrant instructed Patient A to ‘brace’. This was neither appropriate nor conducive to an effective abdominal assessment, given the patient’s presenting condition. Bracing has the potential to cause tissue damage and, as such, represents a risk to the patient.

 

25. Charge 1(b): this charge is found proved. Witness 2 stated in her evidence that ‘it was apparent that [the Registrant] did not identify (…) the patient’s main problem’, which was leaking stools with no diagnosed reason. The Panel accepted this evidence.

 

26. Charge 1(c): this charge is found proved. As the Registrant had not identified the main problem which the patient was suffering from, her advice was not effectively tailored to the needs of the patient. In Witness 2’s oral evidence she stated that the Registrant was ‘confused’ when offering advice to Patient A in relation to techniques to strengthen her abdominal muscles. In her written evidence Witness 2 stated that the Registrant should have provided the patient with appropriate techniques. Witness 2 said that although the Registrant had documented in the patient’s treatment plan that the patient should work on her abdominal muscles, she ‘did not discuss it with the patient’.

 

27. Charge 2: This related to Patient B, who was in the maternity ward and being supervised by Witness 2. At the time of the Registrant’s consultation with the patient, the patient had been on bed rest for a week because she was at risk of pre-term labour and had been advised not to do pelvic floor exercises or exert herself in anyway. Witness 2 had not been present for the actual consultation that the Registrant had conducted with the patient, but she had reviewed the Registrant’s notes and spoken to the Registrant about the consultation afterwards. Although the Panel did not have the patient records for this patient, it accepted Witness 2’s evidence in respect of the contemporaneous supervision record that she had made.

 

28. Charge 2(a): this is found proved. The Panel accepted the evidence of Witness 2, that ‘when [the Registrant] assessed Patient B, she did not establish that the patient had already been on bed rest for a period of one week’. In the supervision record of 29 November 2012, Witness 2 records that ‘the Registrant did not gather enough information initially to establish that the patient had been on bed rest for [one week] and not referred for physio input’. In evidence, Witness 2 said that it was important to establish a patient’s history before seeing a patient, and the appropriate sources of information would be a patient’s medical notes, and speaking to the midwives. She said the importance of establishing whether a patient had been on bed rest for a week was because it would have an impact on the sort of advice and treatment a physiotherapist would give.

 

29. Charge 2(b): this charge is found proved. In her witness statement, Witness 2 states that the Registrant ‘should have asked the midwives on the ward about [Patient B] as they would have had a clear idea about whether she was experiencing or showing symptoms of bowel problems (…) [the Registrant] did not ask these questions’.

 

30. Charge 2(c): this charge is found proved. In her witness statement, Witness 2 states that the Registrant ‘had documented that [Patient B’s] main problem was neck and shoulder pain’, but in her later discussion with the Registrant, the Registrant had admitted that ‘she had documented the notes incorrectly and this was not [Patient B’s] main problem’.

 

31. Charge 2(d): this charge is found proved. In the supervision record of 29 November 2012, Witness 2 records that ‘[the Registrant] gave the patient pelvic floor exercises, which the patient was specifically advised not to do due to risk of pre-term labour at 27/40 weeks’. In evidence Witness 2 said she found out in the discussion with the Registrant afterwards that the patient had informed the Registrant that she had been told not to do pelvic floor exercises.

 

 

32. Charge 3: This related to Patient C who was a post natal patient and who was referred to as ‘at risk’, although she did not have any specific problems. Although the Panel did not have the patient records for this patient, it accepted Witness 2’s evidence in respect of the contemporaneous supervision record that she had made.

 

33. Charge 3(a): this charge is found proved. In the supervision record of 30 November 2012, Witness 2 records that ‘[the Registrant] did not position the patient adequately for thorough assessment of abdominals’. The Panel accepts this evidence and therefore concluded that the Registrant had not positioned the patient appropriately in order to make a thorough assessment.

 

34. Charge 3(b): this charge is found proved. In her statement, Witness 2 identified that ‘[the Registrant] did not offer advice about pelvic floor muscle exercises and did not detail what any of the exercises were’. This is further confirmed in the supervision record of 30 November 2012.

 

35. Charge 3(c): this charge is found proved. In her statement, Witness 2 states that ‘[the Registrant] gave [Patient C] an information leaflet which advises women to refrain from high impact activity exercise for a period of 6 months after giving birth. However, [the Registrant] advised [Patient C] that she could start running after 6 weeks. The Panel accepts the evidence of Witness 2 that running is a high impact activity and concludes that the advice given by the Registrant, both verbally and by way of a leaflet, was contradictory.

 

36. Charge 4: This relates to Patient D, who was a complex and unwell patient on the ward, and who had had a previous problem with his lungs. He had previously suffered from airway disease and a significant injury where part of his lung had been removed. Although the Panel did not have the patient records for this patient, it accepted Witness 4’s evidence in respect of the contemporaneous supervision record that she had made, insofar as it went.

 

37. Charges 4(a) and 4(b): these are both found proved. In the supervision record of 17 January 2013, Witness 4 states that ‘[the Registrant] failed to look up the chest x-ray of the patient’, and goes on to observe that ‘the patient had also had a lobe removed (...) but [the Registrant] failed to pick this up from the notes’.

 

38. Charge 4(c): this charge is found not proved. In her statement, Witness 4 states that ‘[the Registrant] documented on [Patient D’s] records that she had carried out the ACBT (Active Cycle of Breathing Technique). However I did not witness [the Registrant] carrying out the ACBT’. In the supervision record for 17 January 2013, Witness 4 records that an ACBT was carried out, albeit poorly. The Panel could not therefore be satisfied, to the required standard, that the Registrant had not carried out some form of ACBT.

 

39. Charges 4(d) and 4(e): these charges are found proved. The Panel accepts Witness 4’s observation on the supervision record of 17 January 2013, that the Registrant ‘didn’t educate the patient on the importance of self clearing chest or mobilising/pacing etc etc’.

 

40. Charge 4(f)(i): this charge is found proved. In the supervision record of 17 January 2013, Witness 4 records that ‘[the Registrant] wrote the treatment in the Plan section, which was confusing to read’.

 

41. Charge 4(f)(ii): this charge is found not proved. In the absence of the medical records for Patient D, the Panel could not be satisfied, to the required standard, that the Registrant did not complete adequate notes in that she did not record detail of the treatment plan for the patient.

 

42. Charge 5: This relates to Patient E, who had been admitted to the ward with a history of falls and decreased mobility, and the role of the physiotherapist was to establish whether he was safe to mobilise. Although the Panel did not have the patient records for this patient, it accepted Witness 3’s evidence in respect of the contemporaneous supervision record that she had made.

 

43. Charge 5(a): this charge is found proved. In her statement, Witness 3 states that ‘[the Registrant] did not identify that [Patient E] had suffered from a number of falls’. This is consistent with the supervision record of 21 January 2013, which records that ‘[the Registrant] had not picked up [a history] of falls’.

 

44. Charge 5(b): this charge is found proved. In the supervision record of 21 January 2013, Witness 3 records ‘From the obs (observation) chart [the Registrant] did not recognise that there has been a discrepancy in [Patient E’s] BP (Blood Pressure) and particularly documented as low post fall’.

 

45. Charge 6: This relates to Patient U who had suffered from a fall and fracture and a myocardial infarction. He had been referred to the physiotherapy team from the Intensive Care Unit in order to assess his mobility and establish whether he was able to go home. Although the Panel did not have the patient records for this patient, it accepted Witness 3’s evidence in respect of the contemporaneous supervision record that she had made.

 

46. Charge 6(a): this charge is found proved. In the supervision record of 22 January 2013, Witness 3 records ‘one of the physio plans from yesterday, to check whether [Patient U] have stairs @ home – [the Registrant] has not done this’.

 

47. Charge 7: This relates to Patient F who suffered from a number of different problems including leg infections, urine infections and cellulitis, such that her mobility was badly affected and she needed intensive rehabilitation to mobilise.

 

48. Charge 7(a): this charge is found proved. In her statement, Witness 4 states that ‘when [the Registrant] was watching [Patient F] mobilise with the walking aid, she failed to notice that it was too high. I advised [the Registrant] that the frame should be lowered and I did this for her.’ Witness 4 goes on to state that ‘in order to accurately assess [sic] what height a walking aid should be, [the Registrant] should have observed [Patient F] mobilising to check whether she was moving backwards’

 

49. Charge 8: This relates to Patient G who had had a heart angiography investigation and a chest infection. He had been deemed medically fit for discharge and the Registrant was to assess his mobility as part of the final assessment.

 

50. Charge 8(a): this charge is found proved. In her statement, Witness 4 observes that ‘when [Patient G] stood up, he appeared to be unbalanced and swayed quite profoundly’. The supervision record for 31 January 13 records that after it was evident that the patient was swaying, ‘[the Registrant] continued to walk the patient to the door’.

 

51. Charges 8(b) and 8(c): these charges are found not proved, by virtue of the HCPC having offered no evidence in respect of them.

 

52. Charge 9: This relates to Patient H who had been admitted to the Emergency Assessment Unit, complaining of mobility problems, hip and knee pain. She had been transferred to the care of physiotherapists to assist her with mobilising.

 

53. Charge 9(a): this charge is found proved. The supervision record of 6 February 2013 records that the Registrant ‘didn’t look at the latest medical notes for [Patient H]. This is consistent with Witness 4’s statement in which she observes that the Registrant ‘did not look at the latest medical notes’.

 

54. Charge 9(b): this charge is found proved. The supervision record of 6 February 2013 in respect of the assessment of [Patient H], records that the Registrant ‘didn’t look at x-ray report’. Witness 4’s witness statement is consistent with this.

 

55. Charge 9(c): this charge is found proved. In her statement, Witness 4 states that ‘As it is documented in my supervision records, [the Registrant] did not conduct a ROM (Range of Movement) assessment and instead asked [Patient H] to stand straightaway’.

 

56. Charge 9(d): this charge is found not proved. There was insufficient evidence before the Panel to satisfy it to the required standard as to whether or not the Registrant had carried out an objective and/or thorough assessment of [Patient H’s] ability to balance in order to determine the most appropriate aid. The supervision record of 6 February 13 records Witness 4’s view of the nature of the assessment that she would have carried out, but does not detail the extent of what the Registrant did or did not do. Also, the Registrant has recorded information on both the subjective and objective parts of the Mobility Assessments within the patients’ medical notes.

 

57. Charge 10: This relates to Patient I who was a stroke patient with a confirmed infarct, which is where there is a blockage of one of the vessels in the brain as opposed to a bleed. In such cases, physiotherapists are required to carry out a neurological assessment, which includes assessing the level of a patient’s sensation, proprioception, tone, muscle power, posture and whether there were problems with range of movement.

 

58. Charge 10: this charge is found proved. The supervision record of 19 February 2013 records that the Registrant ‘was not confident to carry out a neuro assessment. Did not know that it was appropriate to trial sitting on the edge of the bed and rolling’. In her statement, Witness 3 states that she took over part of the assessment of Patient I and completed it herself, as the Registrant did not appear to know what to do with the information that she had gathered.

 

59. Charge 11: This relates to Patient J who needed assistance in mobilising. Although the Panel did not have the patient records for this patient, it accepted Witness 4’s evidence in respect of the contemporaneous supervision record that she had made.

 

60. Charge 11(a): this charge is found proved. The supervision record for 14 March 2013 records that the Registrant ‘used a frame to assess [Patient J’s] mobility as she hadn’t met the lady before. However the lady wasn’t in with mobility problems and there was no objective evidence that a frame would be necessary.’ The Panel was satisfied on the balance of probabilities that the Registrant had not carried out an objective assessment of the patient’s mobility, because an objective assessment would have identified that the use of a frame was inappropriate.

 

61. Charge 11(b): this charge is found proved. In the supervision record of 14 March 2013, it is recorded that ‘No strength tested’ by the Registrant in assessing the patient. The Panel concluded that if the strength was not tested by the Registrant, then it followed that she had not ascertained the strength of the patient when making her assessment.

 

62. Charge 11(c): this charge is found proved. In her statement, Witness 4 states that the Registrant ‘did not document on the Patient records how she conducted the assessment of mobility. [She] did not document how far the patient had walked…or whether the patient struggled to get in and out of bed. [This means] there would not be enough information to show what [Patient J’s] level of mobility [sic]’.In the supervision record of 14 March 2013, Witness 4 records that the Registrant ‘didn’t document how the patient got out of bed, but just said “sit over bed”’. The Panel is therefore satisfied, notwithstanding the absence of the patient medical notes, that the Registrant did not produce adequate notes for the assessment of Patient J’s mobility. They were not adequate as they did not provide enough information for the next clinician involved in Patient J’s care.

 

63. Charge 12: This related to Patient K who was an inpatient on the maternity ward, who had been referred for physiotherapy, but who was not considered to be ‘at risk’ according to the General Hospital’s criteria.

 

64. Charge 12(a) and 12(c): these are both found proved. At the final review hearing on 28 March 2013, in the summary document prepared by Witness 5, it was recorded that ‘[Patient K] was not offered any assessment, advise [sic] or treatment’. In the patient’s notes, under ‘Assessment date and time’, the words ‘Not assessed’ have been written. The Panel is satisfied, that on the balance of probabilities that it is more likely than not that the Registrant did not conduct an assessment of Patient K to ascertain where her pain was located and did not, as a consequence, provide appropriate advice or recommend treatment to the patient to alleviate her pain.

 

65. Charge 12(b): this is found not proved. There was insufficient evidence before the Panel to satisfy it, to the required standard, as to whether or not a body chart had been completed in respect of Patient K, and what, if anything, might have been recorded on any body chart.

 

66. Charge 12(d): this is not proved by virtue of the fact that the HCPC has offered no evidence in respect of it.

 

67. Charge 13: This relates to Patient L, who was two weeks post natal, and who had previously been seen by Witness 2 in relation to rectus abdominus diastasis/divarication, which is a condition that occurs when the left and right muscle bellies of the “six pack” muscle separate during pregnancy.

 

68. Charge 13(a): this is found proved. In her oral evidence, Witness 5 stated that Witness 2 had written a clear treatment plan in the patient’s notes, when she had previously assessed the patient, but the Registrant had not read it. In her statement, Witness 5 states that the Registrant ‘admitted that [she] had not seen that Witness 2 had recorded the divarication gap and stated that she had not read the plan’.

 

69. Charge 13(b): this is found proved. The supervision record for 18 March 2013 in respect of Patient L, records that the Registrant ‘did not [assess] on standing’.

 

70. Charge 14: This relates to Patient M, who was a musculoskeletal patient and was two months post natal. Patient M had had a caesarean section and was previously very fit, running up to four times a week during pregnancy. She wanted further advice on what the best exercises would be for her tummy muscles.

 

71. Charge 14(a): this is found not proved by virtue of the HCPC having offered no evidence in respect of it.

 

72. Charges 14(b) and (c): these are both found proved. The record of supervision of 18 March 2013 records that in respect of the Registrant’s interaction with Patient M, ‘[no] progression of [exercise] given; [Patient M] asked about sit-ups – not advised against’. The record of the final review meeting of 28 March 2013 states, in respect of Patient M ‘her exercises were not progressed and she was not advised against sit-ups…’

 

73. Charge 15: this relates to Patient N who was referred to the physiotherapy unit with multiple joint pain.

 

74. Charge 15(a): this was found not proved. The Panel examined the SIN factors recorded by the Registrant in Patient N’s medical notes. This is a physiotherapy assessment which helps to establish the severity of the pain (S); the irritability of the problem (I) and the nature (N) or suspected cause of the problem, and is known by the acronym SIN. The Panel was satisfied that the SIN factors recorded by the Registrant were adequate.

 

75. Charge 15(b): this is found proved. The Registrant recorded in Patient N’s medical notes, in the Hydrotherapy Referral Pro forma section, that Patient N had a diagnosis of lower back pain. However, the assessment section within Patient N’s medical notes do not record any reference to back pain. The Registrant had completed both sets of notes. Therefore, the Panel was satisfied to the required standard that the Referral Proforma did not provide both adequate and correct notes.

 

76. Charge 15(c): this is not proved. In her statement, Witness 2 states that the Registrant ‘did do a neurological assessment, but did not establish muscle power S1 and S2 myotomes’. In the circumstances, the Panel finds that the neuro assessment that was carried out by the Registrant was sufficiently complete.

 

77. Charge 15(d): this is found proved. In her statement, Witness 2 states that the Registrant ‘did not ask all of these questions [Red Flag or cauda equina] [1]to rule this [cauda equina syndrome] out, but did document in the notes that the patient did not experience this type of pain’. The Panel is satisfied, to the required standard, that without answers to these questions, sufficient information had not been gathered from the patient.

 

78. Charge 16: This relates to a number of patients, and the length of time that the Registrant took to carry out and document consultations with them.

 

79. Charge 16(a): this is found proved. The supervision record for 17 January 2013, in respect of Patient D, records that the patient assessment took 3 ½ hours. In her statement, Witness 4 states that an appropriate timescale for the circumstances of that particular patient would have been 30 to 40 minutes. The Panel is satisfied, to the required standard, that the Registrant did not efficiently time manage the assessment in relation to Patient D.

 

80. Charge 16(b): this is found proved. The supervision record for 21 January 2013, in respect of Patient E, records that the patient assessment took at least 40 to 50 minutes. In her statement, Witness 3 states that, in her experience, that type of assessment ‘should only take 20 minutes to complete and [the Registrant] spent more than double the time it would normally take’. The Panel is satisfied, to the required standard, that the Registrant did not efficiently time manage the assessment in relation to Patient E.

 

81. Charge 16(c): this is found proved. The supervision record for 19 February 2013, in respect of Patient I, records that the patient assessment took 1 hour and 20 minutes, and an incomplete assessment of the patient was produced. Witness 3, in her statement, states that ‘a patient who has suffered from a stroke may take longer to assess, and a period of up to one hour may be required, but very rarely’. She went on to state that she considered that 1 hour and 20 minutes for this particular patient was too long. The Panel is satisfied, to the required standard, that the Registrant did not efficiently time manage the assessment in relation to Patient I.

 

82. Charge 16(d): this is found proved. The supervision record for 19 February 2013, in respect of Patient P, records that the patient assessment took 55 minutes. In her statement, Witness 3, states that ‘[Patient P] had been seen the day before where [that physiotherapist] did a transfer and a walk. It was inappropriate that [the Registrant] spent a further 55 minutes the next day going over the same mobilisation techniques with the patient’. In her evidence, Witness 3 said that this patient assessment should have taken less than 20 minutes. The Panel is satisfied, to the required standard, that the Registrant did not efficiently time manage the assessment in relation to Patient P.

 

83. Charge 16(e): this is found proved. The supervision record for 22 March 2013, in respect of Patient Q, records that the patient assessment took 50 minutes. In her statement, Witness 3 states ‘a patient such as this [known to the neurocare team with an existing diagnosis of Parkinson’s disease, and referred for a mobility assessment] should only require a 20 minute session; I consider that 50 minutes is too long and unnecessary’. The Panel is satisfied, to the required standard, that the Registrant did not efficiently time manage the assessment in relation to Patient Q.

 

84. Charge 16(f): this is found proved. The supervision record for 22 March 2013, in respect of Patient R, records that the patient assessment took a total of 65 minutes, as clarified during the questioning of Witness 5. Witness 1, in her statement, explained that at the capability review meeting held on 7 February 2013, a period of 40 minutes was agreed with the Registrant as the standard time frame for completing an [out-patient] assessment. Witness 5, in her statement, states that ‘it was agreed by Witness 1 and Witness 2 during the capability process that outpatient assessments should not have taken more than 45 minutes [which included] spending five minutes writing up the notes’. The Panel is satisfied, to the required standard, that the Registrant did not efficiently time manage the assessment in relation to Patient R.

 

85. Charge 16(g): this is found not proved. The supervision record of 22 January 2013, in respect of Patient U, records that two patients were assessed in a 1 ½ hour period. It is not clear from the record how much time was spent assessing each one and, in particular, how much of that time was spent on the patient assessment for Patient U. Therefore, the Panel does not have sufficient evidence upon which to base a decision as to whether the assessment of Patient U was efficiently time managed or not.

 

Decision on Statutory Grounds

 

86. The Panel next considered whether the matters found proved as set out above amounted to misconduct and/or lack of competence and, if so, whether by reason thereof, the Registrant's fitness to practise is currently impaired.

 

87. The Panel considered the submissions made by Ms Oldfield on behalf of the HCPC. She submitted that the matters found proved demonstrated a lack of competence on the part of the Registrant. She also submitted that a number of the charges were also sufficiently serious in nature to amount to misconduct, although she said that the HCPC accepted that this case was effectively a lack of competence case. She submitted that the Registrant's fitness to practise is currently impaired.

 

88. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that any findings of lack of competence and/or misconduct and impairment were matters for the independent judgement of the Panel.

 

89. The Panel was aware that consideration of impairment only arises in the event that the Panel judges that the facts found proved do amount to one or both of the statutory grounds and that what has to be determined is current impairment, that is looking forward from today.

 

90. The Panel finds that the Registrant’s practice has persistently fallen below the standard expected of a physiotherapist, over a considerable period of time, and as judged against a fair sample of her work. As such, in the Panel’s judgement, the facts found proved amount to a lack of competence on the Registrant’s part.

 

91. Throughout the capability process, the Registrant appears to have done her best and to have engaged in the attempts to bring her skills and competency up to the required standard through training, shadowing, mentoring by senior colleagues and learning through observation. All the witnesses described her as having a caring manner for her patients.

 

92. As such, the Panel does not find that the Registrant’s acts or omissions fall short of what would be proper in the circumstances, as characterised by Lord Clyde’s definition of misconduct in the case of  Roylance v GMC (No.2) (2000) 1 AC 31.

 

93. The Panel recognises themes emerging from the facts found proved, which point to a lack of competence to a level at which the Registrant could not independently work safely and effectively in her profession. Therefore, the Panel finds that the statutory ground of lack of competence is established.

 

94. In this case, the lack of competence is sufficiently serious to lead the Panel to a consideration of whether or not the Registrant’s fitness to practise is currently impaired.

 

95. The Panel finds that the Registrant is in breach of the following standards of conduct, performance and ethics for registrants of the HCPC:                                                                             

 

·          5 You must keep your professional knowledge and skills up to date.

·          7 You must communicate properly and effectively with service users and other practitioners.

·          10 You must keep accurate records.

 

96. The Panel also finds that the Registrant is in breach of the following standards of proficiency for physiotherapists:

 

 

·          1a.6 be able to practise as an autonomous professional, exercising their own professional judgement

·          1a.7 recognise the need for effective self-management of workload and resources and be able to practise accordingly

·          1a.8 understand the obligation to maintain fitness to practise

·          1b.2 be able to contribute effectively to work undertaken as part of a multi-disciplinary team

·          1b.3 be able to demonstrate effective and appropriate skills in communicating information, advice, instruction and professional opinion to colleagues, service users, their relatives and carers

·          1b.4 understand the need for effective communication throughout the care of the service user

·          2a.1 be able to gather appropriate information

·          2a.2 be able to select and use appropriate assessment techniques

·          2a.3 be able to undertake or arrange investigations as appropriate

·          2a.4 be able to analyse and critically evaluate the information collected must:

·          2b.1 be able to use research, reasoning and problem-solving skills to determine appropriate actions

·          2b.2 be able to draw on appropriate knowledge and skills in order to make professional judgements

·          2b.3 be able to formulate specific and appropriate management plans including the setting of timescales

·          2b.4 be able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy or other actions safely and skilfully

·          2b.5 be able to maintain records appropriately

·          2c.1 be able to monitor and review the ongoing effectiveness of planned activity and modify it accordingly

·          3a.1 know and understand the key concepts of the bodies of knowledge which are relevant to their profession specific practice

·          3a.3 understand the need to establish and maintain a safe practice environment

 

Decision on Impairment

 

97. Having determined that the Registrant's actions amounted to lack of competence in respect of the charges found proved, the Panel went on to consider whether her fitness to practise was currently impaired as a consequence of that lack of competence.

 

98. The Panel had regard to the HCPC's Practice Note on impairment, and in particular the two aspects of impairment, namely the ‘personal component’ and the ‘public component’, and the case of CHRE v NMC and Grant [2011] EWHC 927 (Admin).

 

99. The Panel was of the view that the Registrant’s actions and omissions placed patients and service users at risk of harm through her flawed assessments

99. ; inaccuracies in documentation; poor clinical reasoning in identifying patients’ main problems; and basic lack of knowledge and inability to improve that knowledge. Her professional failings were such that they would have brought the profession into disrepute.

 

100. Although the Registrant had a well-structured programme of training and support, over a long period of time, from October 2012 to March 2013, she was unable to reach the standard necessary for independent, safe practice.

 

101. The Panel finds that the Registrant’s lack of competence also amounts to a breach of fundamental tenets of her profession, as represented by the standards identified under the statutory grounds above.

 

102. The Panel therefore finds that the Registrant was impaired by reason of her lack of competence at the time of the allegations.

 

103. There was no evidence before the Panel to indicate that the Registrant had subsequently reflected on her practice, so as to achieve sufficient insight into it. The Panel took into account the Registrant’s letter received on 10 September 2014, in which she mentions insight. However, this is in relation to her personal circumstances, and not in relation to patient safety or the wider public interest in upholding the reputation of the profession.

 

104. Given that the standard of her practice had not responded sufficiently to the training and support she was given at the time to achieve independent safe practice, there remains a real risk of repetition.

 

105. The circumstances of this case engage three of the four criteria identified by Dame Janet Smith in her 5th Shipman report and subsequently approved by Mrs Justice Cox in the case of Grant. The Registrant has in the past placed and is liable in the future to place patients at unwarranted risk of harm; has in the past brought and is liable in the future to bring the profession into disrepute and has in the past breached and is liable in the future to breach fundamental tenets of the profession.

 

106. The Panel considered whether the Registrant may be able to remediate her practice. Whilst the Panel was of the view that her practice was capable of remediation in theory, there is no evidence that the Registrant has remediated her lack of competence.

 

107. The Panel recognises that the Registrant displayed a positive attitude throughout the training and capability process. However, given the lack of insight and real risk of repetition, the Panel finds that the Registrant’s fitness to practise is currently impaired.

 

108. A finding of impairment is also necessary, in the Panel’s view, to protect patients and service users; to uphold professional standards and to maintain public confidence in both the profession and the regulatory process.

 

Decision on Sanction:

109. Having determined that the Registrant’s fitness to practise is currently impaired by reason of her lack of competence, the Panel next went on to consider whether it was impaired to a degree which required action to be taken on her registration by way of the imposition of a sanction.

 

110. The Panel accepted the advice of the Legal Assessor and it exercised its independent judgement. The Panel had regard to the Indicative Sanctions Policy. The Panel was aware that the purpose of a sanction is not to be punitive but to protect members of the public and to safeguard the public interest, which includes upholding professional standards, together with maintaining public confidence in the profession and the regulatory process.

 

111. The Panel first identified what it considered to be the principal mitigating and aggravating factors in this case.

 

112. Mitigating factors:

 

·          The Registrant’s long and previously unblemished record;

·          The Registrant’s de-skilling was in part caused by her working as the only physiotherapist in her area and in the same environment for 20 years;

·          The Registrant’s positive attitude and engagement throughout the re-training and capability process;

·          The health related and other issues raised by the Registrant in her letter to the HCPC, received on 10 September 2014;

·          That no actual harm had been caused to patients;

·          The witnesses were consistent in describing the Registrant as a caring and open clinician who always did her best for the patients in her care.

 

113. Aggravating factors:

 

·          The risks to patients caused by the deficiencies in the Registrant’s practice;

·          The seriousness and wide ranging nature of the Registrant’s lack of competence over a protracted period of time;

·          That the Registrant’s practice had failed to improve to an adequate and safe standard following an extensive capability and re-training programme;

·          The absence of adequate insight by the Registrant into her own lack of competence, implications for patient safety and the consequences for the reputation of the profession;

·          The Registrant is an experienced and senior clinician who made basic, fundamental errors and had not kept her practice up to date.

 

114. The Panel next approached the ladder of sanctions, beginning with the least restrictive. The Panel does not consider that the options of taking no further action, or the sanction of a Caution Order to be appropriate or proportionate in the circumstances of this case. Neither option would provide the necessary levels of public protection, nor would they reflect the seriousness and wide-ranging nature of the Registrant’s lack of competence. The issues are not of a minor or isolated nature, and the Panel has identified a real risk of repetition.

 

115. The Panel does not consider this case to be suitable for mediation.

 

116. The Panel moved on to consider the imposition of a Conditions of Practice Order. The Indicative Sanctions Policy suggests that this sanction may be appropriate where the issues are capable of correction and there is no persistent or general failure which would prevent the Registrant from doing so. In this case, the Panel is of the view that remediation is theoretically possible. However, the wide-ranging nature of the Registrant’s lack of capability and her inability to respond appropriately to the extensive re-training already given, leaves the Panel unable to conclude that correction is a realistic prospect at this time.

 

117. Furthermore, the Panel does not consider that it would be possible to formulate workable conditions that would provide the necessary level of public protection. At this time, any conditions would have to be so extensive, that they would effectively amount to a suspension by another name.

 

118. The imposition of conditions requires a commitment on the part of the registrant to resolve matters, but given the lack of appropriate insight previously identified by the Panel, it cannot conclude that the necessary commitment exists at this point in time. Therefore, the Panel concludes that a Conditions of Practice Order is neither appropriate nor proportionate in this case.

 

119. The Panel next considered a Suspension Order. The Indicative Sanctions Policy suggests that a Suspension Order may be appropriate where a lesser sanction would provide insufficient public protection. The Panel considers that this is the case here. The Panel has taken into account the serious consequences for the Registrant in imposing a Suspension Order, but is of the opinion that the need to protect the public, mark the seriousness of the Registrant’s lack of competence and maintain public confidence in the profession, outweigh the Registrant’s own interests in the circumstances of the case.

 

120. The Panel is of the opinion that the Suspension Order might also facilitate the Registrant’s eventual return to practice. This is because it will provide her with an opportunity for reflection during which she might achieve adequate insight and take measures, within the confines of a Suspension Order, to address deficiencies in her practice.

 

121. The Panel has considered carefully the appropriate period of a Suspension Order, concluding that 12 months is the minimum practical period for the Registrant to address the issues identified above. The Panel notes that the Registrant would be free to seek an early review should her circumstances change. Accordingly the Panel directs that the Registrant should be suspended for a period of 12 months.

 

122. This order will be reviewed prior to its expiry. The panel conducting that review may be assisted by the following:

 

·          The Registrant’s attendance at the review hearing;

·          Evidence of any relevant training activities and/or professional development (able to be completed within the confines of a Suspension Order) undertaken by the Registrant;

·          Evidence of reflection, such as a reflective piece, demonstrating insight into the Registrant’s lack of competence and the associated consequences for patients and her profession;

·          Any other evidence that the Registrant considers might be helpful to the review panel.



[1] There is a typographical error in the allegations which incorrectly shows clauda equina as clauda equine.

Order

ORDER: That the Registrar is directed to suspend the registration of Miss Marion Hazel Le Cornu for a period of 12 months from the date this order comes into effect.

Notes

The order imposed today will apply from 19 May 2016. This order will be reviewed before its expiry on 19 May 2017.

Hearing History

History of Hearings for Miss Marion Hazel Le Cornu

Date Panel Hearing type Outcomes / Status
22/10/2018 Conduct and Competence Committee Review Hearing Struck off
11/04/2018 Conduct and Competence Committee Review Hearing Suspended
19/04/2017 Conduct and Competence Committee Review Hearing Suspended
18/04/2016 Conduct and Competence Committee Final Hearing Suspended