Mrs Kay Thornley

Profession: Speech and language therapist

Registration Number: SL06191

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 12/04/2016 End: 16:00 15/04/2016

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

Panel: Conduct and Competence Committee
Outcome: No further action

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Allegation

During your employment with the Somerset Partnership NHS Foundation Trust as a Speech and Language Therapist you:

1) Between 19 June 2011 and 17 April 2013, in respect of Patient A did not:

a. record contemporaneous, accurate and comprehensive progress notes

including:

i. review information;

ii. what information was left with carers;

b. complete a comprehensive assessment report dated 20 February 2012;

c. record comprehensive RIO risk information on 29 November 2011;

d. complete and/or record capacity assessment for texture modification;

e. record an accurate care plan on 20 February 2012;

f. complete and/or record an aspiration risk assessment;

g. complete and/or record triggers for review and did not include in crisis relapse plan;

h. complete and/or record follow up from 6 November 2012 that food given did not match recommended texture;

i. complete a review due on 2 May 2012 until 23 May 2012;

2) Between 22 June 2009 and 17 April 2013, in respect of Patient B did not:

a. complete and/or record a dysphagia risk alert;

b. record contemporaneous, accurate and comprehensive progress notes including:

i. review information;

ii. what information was left with carers;

c. complete comprehensive assessment report dated 23 November 2011;

d. did not complete and/or record RIO risk information;

e. complete and/or record capacity assessment for texture modification;

f. record an accurate care plan dated 9 April 2013;

g. complete and/or record an aspiration risk assessment;

h. complete and/or record triggers for review and did not include in crisis relapse plan.

i. Clearly state the thickener recommended in October and November 2012.

3) Between 13 February 2009 and 23 January 2013, in respect of Patient C did not:

a. record contemporaneous, accurate and comprehensive progress notes including:

i. assessment information;

ii. review information;

iii. what information was left with carers;

b. complete and/or record risk screen and risk information;

c. complete and/or record capacity assessment;

d. complete and/or record an aspiration risk assessment;

e. complete and/or record triggers for review and did not include in crisis relapse plan;

f. complete and/or record assessment of specific foods/thickeners that have been given to patient in August 2012;

g. did not maintain an open case status of the case to ensure that a planned review in March 2013 could take place.

4) In respect of Patient D did not:

a. record contemporaneous, accurate and comprehensive progress notes including

i. assessment information;

ii. review information;

iii. what information was left with carers;

b. Complete and/or record comprehensive risk information;

c. Record comprehensive capacity assessment;

d. record an accurate care plan;

e. complete and/or record an aspiration risk assessment;

f. complete and/or record triggers for review and are not included in crisis relapse plan.

g. Complete and/or record follow up of videofluoroscopy referral request;

5) Between 21 October 2010 and 11 April 2013 in respect of Patient E did not:

a. Record dysphagia risk alert;

b. record contemporaneous, accurate and comprehensive progress notes including:

i. assessment information;

ii. review information;

iii. what information was left with carers;

c. Record comprehensive RIO risk information;

d. Complete and/or record capacity assessment;

e. complete and/or record an aspiration risk assessment.

f. Record an accurate care plan in that:

i. there was an Inconsistency in the care plan dated 15 October 2012 which described Normal C;

ii. Bread was not specified in care plan;

iii. Review date for swallow not set following review on 5 April 2012;

iv. Review not entered on care plan until 19 April 2013.

g. complete and/or record triggers for review and are not included in crisis relapse plan;

h. set review date for swallow and did not highlight this to the Head of Speech and Language Therapy;

i. Contact the Patients GP despite an aspiration and choking risk identified at the videofluoroscopy;

6) In respect of Patient F did not:

a. Complete and/or record RIO risk information;

b. Complete and or/record capacity assessment;

c. complete and/or record an aspiration risk assessment;

d. Record a clear rationale for discharge;

e. Work within your scope of practise in your report dated 30 May 2012 by:

i. recommending rumination therapy;

ii. providing advice around textures.

f. Record comprehensive dysphagia assessment on 8 April 2013;

g. Complete and/or record observation of thickeners trial;

h. Have comprehensive direct contact with other medical professionals in light of the diagnosis of rumination and/or regurgitation.

7) Between 14 August 2012 and 31 August 2012 in respect of Patient G did not:

a. Complete and/or record a clear plan in place regarding management of aspiration episodes;

b. Formalise a best interest decision around feeding orally at risk;

c. record contemporaneous, accurate and comprehensive progress notes including:

i. assessment information;

ii. review information;

iii. what information was left with carers.

d. record complete RIO risk information on 9 October 2012;

e. complete and/or record capacity assessment for texture modification;

f. complete and/or record an aspiration risk assessment;

g. follow the Mental Capacity Act process;

h. consistently complete in person patient reviews which was inappropriate given the level of clinical risk;

i. complete and/or record triggers for review and did not include in crisis relapse plan;

8) Your actions as described in paragraphs 1-7 amount to misconduct and/or lack of competence.

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

Finding

Preliminary Matters:


Service


1. The Panel found that there was good service of the notice of hearing by a letter dated 6 January 2016 sent to the Registrant’s registered address.
Proceeding in absence


2. Mr Chalmers made an application for the hearing to proceed in the absence of the Registrant. He referred to the Registrant’s undated statement prepared for this hearing. The Registrant confirms that she will not be attending the hearing because of the effect she believes that this will have on her health. She states that she finds it difficult to go back to the events in early 2013 and is unable to revisit the paperwork and has no desire to read subsequent statements. The Registrant also confirms that she took early retirement in August 2015.


3. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Practice Note “Proceeding in the Absence of the Registrant”. The Panel decided that the Registrant is voluntarily absent from the hearing. The Registrant expects the hearing to proceed in her absence and there would be no purpose in an adjournment. There is nothing which suggests that the Registrant might change her mind on the potential risks to her health of attending a hearing. The Panel noted that the Registrant has submitted detailed written submissions for the hearing which could be considered during the hearing. The Panel considered the public interest and the interests of two witnesses who attended the hearing to give evidence. The public interest is that the case is concluded expeditiously and it is in the interests of witnesses that the hearing proceeds. The Panel concluded that the public interest outweighs the Registrant’s interest and that the hearing should proceed.


4. Mr Chalmers referred to information in the bundle relating to the Registrant’s health and that the Panel may wish to consider whether it might be appropriate for part of the hearing to be heard in private to protect the Registrant’s private life.


5. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Practice Note. The Panel decided that the important principle of open justice should be upheld and that the case should be heard in public, with a limited exception which would apply only to details regarding the Registrant’s health, which would be heard in private if necessary.


Application to amend the allegation


6. Mr Chalmers made an application to make a minor amendment to correct a grammatical error in particular 2(d) and 3(g) to delete a double negative. The application was to remove the words “did not” from both particulars.


7. The Panel accepted the advice of the Legal Assessor who advised that the Registrant did not have prior notice of the proposed amendment and that the Panel should consider whether the Registrant was prejudiced by the proposed amendments. The Panel carefully reviewed the Registrant’s written submissions and noted that she had not been misled by the grammatical error but had interpreted the allegation as one that she had not undertaken the relevant action. The Panel concluded that the Registrant was not prejudiced by the proposed amendments and that it was sensible to remove the grammatical error. The Panel therefore exercised its discretion to allow the amendments.


8. During its deliberations the Panel identified that there was a typographical error in particular 1(c). This particular refers to a RiO risk assessment for Patient A. The date given in the particular is 29 November 2011, whereas the relevant document is dated 29 November 2012. The Legal Assessor confirmed that the Panel has discretion to make amendments to the particulars, but should consider carefully whether the Registrant is prejudiced bearing in mind that the Registrant is not present and has not had notice of the possible amendment. The Panel carefully reviewed the Registrant’s written submissions and noted that she referred in those submissions to the document dated 29 November 2012. The Panel concluded that the Registrant has not been misled by the typographical error and exercised its discretion to make the amendment.


9. The Panel also identified a drafting error in particular 7. The stem of this particular specifies the dates 14 August 2012 to 31 August 2012. While this date limitation applies to some of the particulars, it does not apply to all of them. For example particular 7(d) refers to a failure to record complete risk information on 9 October 2012. The Panel again carefully reviewed the Registrant’s written representations and considered whether she might be prejudiced if an amendment was made to delete the date restriction. The Panel approached the exercise of its discretion carefully bearing in mind that the Registrant is not present or represented. The Panel decided that the Registrant is not prejudiced and that it is in the public interest that the substance of the allegation is clarified.


10. The Panel amended the stem of particular 7 to delete the words “between 14 August 2012 and 31 August 2012”. It is appropriate for particulars 7(a) and 7(b) to be limited to the time period 14 August 2012 to 31 August 2012. The Panel therefore amended particular 7(a) and 7(b) so that each starts with the addition of the words “between 14 August 2012 and 31 August 2012”.


11. The Panel also amended particular 6(e) to correct a typographical error, again on the basis that the Registrant is not prejudiced. This particular should refer to the Registrant’s scope of “practice”.


Background


12. The Registrant was employed by Somerset Partnership NHS Foundation Trust (“the Trust”) as a Band 7 Advanced Specialist Speech and Language Therapist (SLT). She was based in the Learning Disabilities Speech and Language Therapy service. She worked with service users with severe learning disabilities, all of whom were over 18. Part of the Registrant’s role was to deliver a specialist service to service users with dysphagia (difficulties with eating and/or drinking). The Registrant was required to work to the Trust Dysphagia Standards of Practice. The Registrant was accountable to KP, who was at that time Head of SLT (Learning Disabilities).


13. In an undated letter of April 2013 JK, an SLT at Musgrove Park Hospital wrote to KP, raising concerns regarding Patient G. The concerns related to a miscommunication or misunderstanding between the Registrant and the GP, lack of a clear plan as to whether Patient G should be treated in the community or in hospital for aspiration episodes (inhalation into the lungs of liquid and/or food particles), and the lack of a formalised Best Interest Decision for Patient G. The decision concerned whether the patient continued to be fed orally rather than via a Percutaneous Endoscopic Gastrostomy (PEG) tube. A Best Interest Decision is a decision made by the “Decision Maker” where the patient lacks capacity; it is a formal procedure in line with the Mental Capacity Act 2005.


14. DH, Adult SLT Manager, Acute and Community Trusts, was appointed to investigate the concerns relating to Patient G. During the investigation, KP was asked to review all of the Registrant’s caseload activity. As a result of this review, further issues were identified with the Registrant’s recording and clinical decision making relating to Patients A-F and the investigation was broadened.


15. The Registrant retired in August 2015 and reports that she is not currently practising as an SLT.

Decision on Facts


16. The Panel heard evidence from DH and KP. The Panel found that DH was an honest witness. However, the Panel only gave limited weight to her evidence because the Panel found that in significant areas she was unfamiliar with the matters she was investigating. In particular she did not have a familiarity with the version of RiO (the electronic patient record system used by the Trust) that was used by the Registrant and she appeared to be uncertain about what she was looking at on RiO. The Panel therefore had reservations about her assertions about what was or wasn’t contained in the RiO records and her evidence about what the absences of information could or should mean. The Panel also had reservations about DH’s evidence because she is not a clinical specialist in the field of adult learning disability which was the essence of the matters she was investigating. There were also some indications that she had taken a very negative view of the Registrant in that she was unable to identify any positive information about the Registrant from the entirety of her investigation.

17. The Panel found that KP was an honest witness. She had a clear understanding of the matters she was investigating and of the specialist field in which the Registrant worked. She understood the RiO system well. She came across to the Panel as fair minded in that she was able to identify the strengths and weaknesses of the Registrant.

 
18. In its assessment of KP’s evidence the Panel considered very carefully the background circumstances. The Registrant had raised a grievance against KP in January 2013 which included a complaint relating to the way in which health matters were discussed during supervision sessions. KP was asked to carry out an audit of the Registrant’s caseload during the time the Registrant’s grievance was being investigated. The Panel understood the point raised by the Registrant that she felt she was being targeted because she had raised the complaint in January 2013. When KP was asked about this matter she explained that the key decisions to investigate the Registrant and her appointment to carry out the audit into the Registrant’s caseload were made by the Service Manager and not by herself. KP acknowledged that there could be a perception that she would not be objective because of her involvement in the grievance.


19. The Panel found that KP was fully aware at the time she carried out her audit of the need to be objective and fair, particularly because the Registrant had raised a grievance against her. Despite the Registrant’s beliefs, which are understandable, the Panel’s overall view was that KP’s audit was generally objective and factual, and that her evidence to the Panel was reliable. The Panel has carefully looked for the evidence to support KP’s audit and has not accepted every point in the audit due to the lack of supporting evidence.
Patient A
Particular 1(a)


20. The record keeping for SLT service users is recorded or uploaded onto the Trust’s RiO system. The documentation includes progress notes, assessment reports sometimes labelled the “Eating and Drinking Report”, care plans, risk assessments, letters, and advice sheets.


21. Progress notes contain a record of visits or telephone contact and include any activities or concerns. Progress notes should include review information, recording the progress of the service user, details of any assessments carried out, and any changes to the care plan.


22. In her caseload review KP concluded that the review information in the progress notes for Patient A was not comprehensive and lacked specific detail and that the progress notes were unclear as to what information had been left with the carers. Information is left with carers to explain the SLT recommendations including diet and fluids information relevant to the care of the patient and information on how to make contact with the SLT service. The information might include a care plan and diet or food texture advice sheets.


23. The Panel found no clear evidence that the progress notes were not made contemporaneously and no clear evidence of inaccuracies. However, the Panel accepted KP’s evidence that the progress notes were not comprehensive, in particular in relation to the review information and what information was left with the carers. The Registrant accepted when she was interviewed as part of DH’s investigation that she used a descriptive rather than an analytical style in her progress notes.


24. The Panel found that particular 1(a) is proved, but only in relation to the comprehensiveness of the progress notes, and not the allegation that the notes were not contemporaneous or accurate.
Particular 1(b)


25. An additional assessment report may be produced by an SLT as an addition to the care plan. KP explained that an assessment report is not always required, but that if an additional report is prepared it should contain sufficiently detailed additional information to be of benefit to its readers. The Panel reviewed the report dated 20 February 2012 and found that it was not comprehensive. It lacked reference to the specific texture of the food and drink that was recommended and it required more detailed advice about eating and drinking strategies to assist the carers.


26. The Panel found that particular 1(b) is proved.
Particular 1(c)


27. A risk assessment is completed and recorded on the RiO system to identify areas of risk for each service user. The risk assessment includes text boxes and tick boxes which are completed to identify risks and to identify trigger factors and mitigating actions.


28. The Panel reviewed the risk assessment completed by the Registrant for Patient A dated 29 November 2012. It was not comprehensively completed because it did not record trigger factors, nor did it state how risks could be mitigated.


29. The Panel found that Particular 1(c) is proved.
Particular 1(d)


30. A capacity assessment is carried out to consider the mental capacity of a service user and whether they are able to make a decision themselves about their healthcare. One area that requires a mental capacity assessment is whether the patient is able to understand that they may require their food or drink to be a different texture. Although a consent and capacity form was completed for Patient A, this does not state whether Patient A had capacity to agree to texture modification.


31. In her submissions the Registrant admits that she did not complete this information. The Panel found that particular 1(d) is proved by the admission of the Registrant in her written submissions, by the Panel’s review of the documents and by the evidence of KP’s caseload audit.


Particular 1(e)


32. The allegation is that the Registrant did not record an accurate care plan. There was no criticism in KP’s caseload audit that the care plan was inaccurate. Her criticism was that actions in the care plan had not been carried out. The Panel had clear evidence from KP that the document included in the HCPC bundle was only part of the care plan, and that the full care plan would have included a number of other elements. The Panel does not have the full care plan and is therefore unable to make its own assessment of the accuracy of the care plan.

33. The Panel had no reliable evidence that the information contained in the care plan was inaccurate and found that this particular is not proved.


Particular 1(f)


34. The allegation against the Registrant made by DH is that an aspiration risk assessment should be carried out separately from the progress notes and was not carried out in the case of Patient A.
35. The Panel found that the RiO risk information on 29 November 2012 specifically identified a risk of aspirating and appeared to qualify as a risk assessment. It was not clear to the Panel, from the evidence, that an additional assessment was needed. KP told the Panel that an aspiration risk assessment is one of the elements of a care plan, along with other elements that have not been provided to the Panel. In her written submissions on this particular the Registrant refers to the dysphagia care plans and states that she is unable to print off these plans.


36. The Panel found no reliable evidence that the Registrant did not complete or record an aspiration risk assessment and that this particular is not proved.


Particular 1(g)


37. There are a number of incidents which may prompt a review of a dysphagia patient, for example an episode of choking, the patient stops eating or drinking or suffers from repeated chest infections. If difficulties arise, a crisis relapse plan is instigated. This plan will be needed for the majority of dysphagia patients on the Registrant’s caseload.


38. In her written submissions the Registrant accepts that she did not complete this for Patient A. The Panel noted that this admission is consistent with the documents.


39. The Panel found that this particular is proved by the admission of the Registrant, the Panel’s review of the documents and the evidence of KP’s audit.


Particular 1(h)


40. In her progress notes for 6 November 2012 the Registrant recorded that she observed Patient A eating a meal of mashed potato, sausages and gravy and that she noted that Patient A left the sausages. The allegation against the Registrant is that she should have taken action because she had previously recommended texture E (fork mashable) for Patient A and that sausages are not appropriate for this texture recommendation.


41. The Panel found that this allegation is not proved. The Panel considered the guidelines for Dysphagia Diet Food Texture Descriptors (texture E) contained in the bundle. As defined, the guidelines do not exclude sausages provided skins are removed, there are no hard or chewy pieces and they are served with a thick smooth sauce. The Panel did not accept the evidence of DH on this point.


Particular 1(i)


42. The Registrant recorded in the progress notes on 24 October 2011 that she would review Patient A in six months. She made arrangements to visit Patient A on 12 April 2012, which was within the six month period, but the home made a request for a lunchtime appointment. The progress notes record that an appointment was made for 2 May 2012. The assessment did not take place until 23rd May 2012.

43. There is no evidence that the decision to postpone the appointment arranged for 2 May 2012 was unreasonable. The Panel found that the Registrant had taken appropriate steps to arrange a review within the six month period and that an appointment was not “due” on 2 May 2012. It had simply been booked for that date, but did not then take place because the date was changed.


44. The Panel found that particular 1(i) is not proved because the simple booking of an appointment does not necessarily mean that it must take place on that date. It would have been helpful if the Registrant had recorded the reason for the decision to move the appointment to 23 May 2012.


Patient B
Particular 2(a)


45. A dysphagia risk alert is added to RiO when a problem is identified with the patient’s ability to swallow, eat or drink. The Registrant accepts that she did not enter an alert for Patient B in her written submissions.


46. The Panel found that this particular is proved by the Registrant’s admission, the Panel’s review of the documents and the evidence of KP’s audit.


Particular 2(b)


47. In her caseload review KP concluded that the review information in the progress notes for Patient B was not comprehensive and lacked specific detail and that the progress notes were unclear as to what information had been left with the carers.


48. The Panel found no clear evidence that the progress notes were not made contemporaneously and no clear evidence of inaccuracies. However, the Panel accepted KP’s evidence that the progress notes were not comprehensive, in particular in relation to the review information and what information was left with the carers.


49. The Panel found that particular 2(b) is proved, but only in relation to the comprehensiveness of the progress notes, and not the allegation that the notes were not contemporaneous or accurate.


Particular 2(c)


50. The Panel reviewed the Registrant’s “eating and drinking report” dated 23 November 2013. The Panel were unable to identify any significant information which had been omitted and did not accept the evidence of DH that the report lacked important detail.


51. The Panel found that particular 2(c) is not proved.


Particular 2(d) and 2(e)


52. The Panel noted that in her written submissions the Registrant accepts that she did not complete a risk assessment screen or a capacity assessment for texture modification.


53. The Panel finds that particulars 2(d) and 2(e) are proved by the Registrant’s admission, the Panel’s review of the documentation and by the evidence of KP’s audit.


Particular 2(f)


54. The Panel reviewed the care plan concerned dated 9 April 2013. This plan does not specify the texture modification required; it gives a range of options “normal/A/B/C/D/E”. The Panel accepted the Registrant’s explanation, which was consistent with her progress notes, that the entry made on 9 April 2013 was simply the first stage in creating a care plan which would then be completed after an assessment she arranged for 17 April 2013. After the assessment on 17 April 2013 the Registrant entered a clear description of the texture modification in the care plan dated 19 April 2013.


55. The Panel found that the care plan concerned in this particular, dated 9 April 2013 was a draft, not a completed care plan, and that particular 2(f) is therefore not proved.

Particular 2(g)


56. The Panel reviewed the documentation and noted that in the Registrant’s “Eating and Drinking Report-Updated” for Patient B dated 23 November 2011 she considers the risk of aspiration and the mitigation of that risk. In the Registrant’s written submissions she states that the aspiration risk assessment would have been completed in the care plan which she is unable to print off.


57. The Panel has been provided with an extract from the care plan for Patient B, but the complete care plan has not been provided to the Panel. The Panel did not accept the assertion made by DH that there is no record of an aspiration risk assessment having been completed and found that particular 2(g) is not proved.


Particular 2(h)


58. In her written submissions the Registrant accepts that she did not record the triggers for review and did not include them in the crisis relapse plan.


59. The Panel found that this particular is proved by the admission of the Registrant, the Panel’s review of the documents and the evidence of KP’s audit.
Particular 2(i)


60. When a patient has dysphagia a thickener may be added to liquid to alter the texture of the liquid to reduce the risks for the patient. The thickener is prescribed by the GP and advice is given by the SLT. Different manufacturers produce different types of thickener and two of the brand names are “Thick and Easy” and “Resource thicken up, clear”. The allegation against the Registrant is that she did not clearly state the brand name and that this contributed to a confusion and increased risk for the patient.


61. The Panel reviewed the progress notes for Patient B for October and November 2012. The Registrant identified and recorded on 15 October 2012 that she had understood that Patient B was using “Thick and Easy”, but had been informed by the carers that he was using “Resource thicken up clear”. The Registrant recorded that she would arrange a review of Patient B. After this review on 30 November 2012 she recorded that there had been a misunderstanding on the type of thickener but that “he has and will continue to use Resource thicken up clear”.


62. The Panel did not identify any evidence that the Registrant had not clearly stated the thickener recommended in October and November 2012. The Registrant identified in October 2012 that there was an issue about the type of thickener the Patient was using. This issue appears to be long standing, but the Registrant only became aware on 15 October 2012. The Registrant took steps to resolve the issue by carrying out an assessment and recorded a clear statement on 30 November 2012 on the recommended thickener for Patient B.


63. The Panel found that particular 2(i) is not proved.


Patient C


64. In its deliberations the Panel identified that that in her written representations relating to Patient C the Registrant had referred to documents relating to Patient E and in responding to allegations relating to Patient E she had referred to documents relating to Patient C. This is not a criticism of the Registrant, because this issue can easily arise. The Panel very carefully considered all the documents put forward by the Registrant attributing each document to the correct patient and the relevant allegation.


Particular 3(a)


65. In her caseload review KP concluded that the assessment and review information in the progress notes for Patient C was not comprehensive and lacked specific detail and that the progress notes were unclear as to what information had been left with the carers.


66. The Panel found no clear evidence that the progress notes were not made contemporaneously and no clear evidence of inaccuracies. However, the Panel accepted KP’s evidence that the progress notes were not comprehensive, in particular in relation to the review information and what information was left with the carers. The Panel found numerous examples of where more detailed information should have been included; one such example is a record of a decision to “trial thickener in his fluids” without giving any further information. The Panel noted, however, that these progress notes may have been supplemented by information contained elsewhere in the patient’s file.


67. The Panel found that particular 3(a) is proved, but only in relation to the comprehensiveness of the progress notes, and not the allegation that the notes were not contemporaneous or accurate.
Particular 3(b)


68. The Panel accepted the audit evidence of KP that the information was not completed on the relevant parts of the RiO screen. The Registrant’s denial is based on a mistaken reference to a different patient.


69. The Panel found that particular 3(b) is proved. However, the Panel noted the numerous items of risk information contained in Patient C’s progress notes.


Particular 3(c)


70. In her written submissions the Registrant accepts she did not complete the screen on RiO for a capacity assessment for Patient C.


71. The Panel found that this particular is proved by the admission of the Registrant, the Panel’s review of the documents and the evidence of KP’s audit.


Particular 3(d)


72. The Panel accepted the audit evidence of KP that an aspiration risk assessment does not appear to have been completed as a discrete record on RiO. The Registrant claims to have included such an assessment on the dysphagia risk plan and there are references to such assessments in the progress notes.


73. The allegation against the Registrant is that she did not complete or record an aspiration risk assessment. It does not specify that such an assessment must be carried out as a discrete record. The Panel found that the particular 3(d) is therefore not proved.


Particular 3(e)


74. In her written submissions the Registrant accepts that she did not record the triggers for review and did not include them in the crisis relapse plan.


75. The Panel found that this particular is proved by the admission of the Registrant, the Panel’s review of the documents and the evidence of KP’s audit.
Particular 3(f)


76. The Panel reviewed the progress notes for Patient C. They show that in August 2012 there are references to an assessment process and that Patient C was given different foods. DH makes a number of criticisms of the quality of the Registrant’s assessment, but there is a clear record of the assessment, where specific foods have been assessed.


77. The Panel found that particular 3(f) is not proved.


Particular 3(g)


78. In her written submissions the Registrant claimed that Patient C was an ongoing case and the Panel noted from the progress notes that the Registrant made a referral to a physiotherapist in January 2013. Accordingly the Panel does not consider it can rely on the assertion made by DH that the audit showed that this patient had been removed from the Registrant’s caseload. It was not clear from the evidence who would have been responsible for ensuring that a review took place in March 2013.


79. The Panel found that particular 3(g) is not proved.


Patient D


Particular 4(a)

80. In her caseload review KP concluded that the assessment and review information in the progress notes for Patient D was not comprehensive and lacked specific detail and that the progress notes were unclear as to what information had been left with the carers.


81. The Panel found no clear evidence that the progress notes were not made contemporaneously and no clear evidence of inaccuracies. However, the Panel accepted KP’s evidence that the progress notes were not comprehensive, in particular in relation to the review information and what information was left with the carers.


82. The Panel found that particular 4(a) is proved, but only in relation to the comprehensiveness of the progress notes, and not the allegation that the notes were not contemporaneous or accurate.


Particular 4(b)


83. The Panel reviewed the risk information in Patient D’s records and found that it is far from comprehensive. It does not include historic risks and concerns, nor does it provide information about what triggers the risk or how the risk could be mitigated.


84. The Panel found that particular 4(b) is proved.
Particular 4(c)


85. In her written submissions the Registrant accepts that she did not record a comprehensive capacity assessment.


86. The Panel reviewed Patient D’s records and found that they omit the details of the decision on capacity. The Panel found that particular 4(c) is proved by the Registrant’s admission, the documents and the evidence of KP’s audit.
Particular 4(d)


87. KP’s audit alleges that actions identified in Patient D’s care plan were not completed, but does not identify inaccuracies in the care plan. In the Panel’s view, the evidence was not sufficient to prove that the care plan was not accurate, particularly in the face of the Registrant’s denial. The Panel has not been provided with the whole of the care plan concerned to assess its accuracy.


88. The Panel found that particular 4(d) is not proved.


Particular 4(e)


89. The Panel noted the “Eating and Drinking Report” dated 3 October 2012 prepared for Patient D. The Panel found that this report includes an aspiration risk assessment.


90. The Panel found that particular 4(e) is not proved.

Particular 4(f)


91. In her written submissions the Registrant accepts that she did not record the triggers for review and did not include them in the crisis relapse plan.


92. The Panel found that particular 4(f) is proved by the admission of the Registrant, the Panel’s review of the documents and the evidence of KP’s audit.
Particular 4(g)


93. A videofluoroscopy, to gain formal information on swallowing physiology and to assess aspiration risk, was suggested for Patient D in November 2012. The Panel reviewed the progress notes for Patient D up to 14 February 2013 and noted that the Registrant made regular attempts to follow up the issue of the need for a videofluoroscopy. After the videofluoroscopy referral was sent on 14 February 2013 no progress notes have been provided and the Panel does not have any reliable evidence on what further follow up may have taken place.


94. The Panel found that particular 4(g) is not proved.


Patient E


Particular 5(a)


95. The Registrant accepts that she did not enter a dysphagia risk alert for Patient B in her written submissions.


96. The Panel found that particular 5(a) is proved by the Registrant’s admission, the Panel’s review of the documents and the evidence of KP’s audit.
Particular 5(b)


97. In her caseload review KP concluded that the review information in the progress notes for Patient B was not comprehensive and lacked specific detail and that the progress notes were unclear as to what information had been left with the carers.


98. The Panel found no clear evidence that the progress notes were not made contemporaneously and no clear evidence of inaccuracies. However, the Panel accepted KP’s evidence that the progress notes were not comprehensive, in particular in relation to the review information and what information was left with the carers.


99. The Panel found that particular 5(b) is proved, but only in relation to the comprehensiveness of the progress notes, and not the allegation that the notes were not contemporaneous or accurate.


Particular 5(c)


100. The Registrant accepts that she did not complete the RiO risk information screen for Patient E.


101. The Panel found that this particular is proved by the admission of the Registrant, the Panel’s review of the documents and the evidence of KP’s audit.


Particular 5(d)


102. The Panel accepted the evidence of KP that her audit of Patient E’s records did not reveal a discrete record of a capacity assessment. However, there are several other records including an “Eating and Drinking Report” dated 24 November 2011 and various progress notes which make it clear that a capacity assessment had been completed by the Registrant.


103. The Panel found that particular 5(d) is not proved.


Particular 5(e)


104. The Panel accepted the evidence of KP that her audit did not reveal a discrete record of an aspiration risk assessment. However, the Panel noted that on a number of occasions in the progress notes for Patient E the Registrant made notes of an aspiration risk assessment. She also recorded an aspiration risk assessment in the “Eating and Drinking Report” dated 24 November 2011.

105. The Panel found that particular 5(e) is not proved.


Particular 5(f)


106. There was an inconsistency in the care plan dated 15 October 2012 which described “normal C”. Texture C differs from a normal diet. The Registrant admits that she failed to delete the word “normal” and that her care plan was inconsistent in that respect.


107. The Panel found that particular 5(f)(i) is proved.


108. The Panel accepted the evidence of KP in relation to her audit of the records of Patient E. The Panel was able to examine the documents provided and there is no reference to bread. The Registrant denied this particular, but the document to support her denial does not relate to Patient E.


109. The Panel found that particular 5(f)(ii) is proved.


110. The Panel examined the care plan for Patient E and on 5 April 2012 the Registrant noted that a review would take place in six months. Further examination showed that a review did take place in October 2012.


111. The Panel found that particular 5(f)(iii) is not proved.


112. DH’s criticism of the Registrant is that she did not enter review information onto the care plan until 19 April 2013 relating to a review carried out on 5 April 2013. The Panel reviewed the care plan and noted that there is an “update date” in the care plan for 5 April 2013 by the Registrant. It is not clear what review information was being referred to by DH when she asserted that it was not entered until 19 April 2013.


113. The Panel found that particular 5(f)(iv) is not proved.


Particular 5(g)


114. In her written submissions the Registrant accepts that she did not record the triggers for review and did not include them in the crisis relapse plan.


115. The Panel found that particular 5(g) is proved by the admission of the Registrant, the Panel’s review of the documents and the evidence of KP’s audit.


Particular 5(h)


116. The Panel examined the care plan for Patient E which shows that numerous dates for swallow reviews were set. There was no reliable evidence to show when any need to highlight such a review to the Head of Speech and Language Therapy might have arisen.


117. The Panel found that particular 5(h) is not proved.


Particular 5(i)


118. There was no contact with Patient E’s GP following the videofluoroscopy. Particular 5(i) is therefore proved. However, a progress note of 9 January 2012 makes it clear that this patient had capacity and therefore no reference to a GP was necessary at that time.

Patient F


Particular 6(a) and 6(b


119. The Registrant accepts in her written submissions that she did not complete RiO risk information or a capacity assessment.


120. The Panel found that particulars 6(a) and 6(b) are proved by the Registrant’s admission, the Panel’s review of the documents and the evidence of KP’s audit.


Particular 6(c)


121. The Registrant accepts that she did not complete an aspiration risk assessment for Patient F.


122. The Panel found that particular 6(c) is proved by the Registrant’s admission, the Panel’s review of the documents and the evidence of KP’s audit.


123. The Registrant claims that there was no requirement to conduct an aspiration risk assessment for Patient F because of the nature of Patient F’s difficulty. The Registrant had identified Patient F as a patient with a regurgitation problem, but not a problem with dysphagia. Given the assessment the Registrant had made, the Panel accepted that her claim that there was no requirement to conduct a dysphagia aspiration risk assessment is reasonable.


Particular 6(d)


124. The Panel reviewed the Registrant’s “Eating and Drinking Report” dated 30 May 2013. This report sets out a clear rationale for discharging Patient F. The Registrant had identified that Patient F was not a dysphagia case and gave reasons. It was also the Panel’s view from the other documentation relating to Patient F, that the Registrant’s decision to discharge Patient F was not unreasonable.


125. The Panel found that particular 6(d) is not proved.


Particular 6(e)


126. In the “Eating and Drinking Report” dated 30 May 2013 the Registrant made a recommendation that rumination therapy should be considered, but she was not herself recommending rumination therapy. She referred the case to those who would be qualified to determine whether such therapy was appropriate. In the Panel’s judgement the Registrant was no more acting outside the scope of her practice than if she had recommended a patient with a hernia may need surgery.


127. There was no evidence that any advice offered to Patient D by the Registrant on textures was outside the scope of her practice as a Band 7 SLT. The Panel’s view was that whether or not the Registrant breached a restriction placed on her work by her employer, is not determinative of what is the scope of her practice. The Panel did not therefore conclude that the Registrant acted outside the scope of her practice.


128. The Panel found that particular 6(e)(i) and (ii) are not proved.


Particular 6(f)


129. In her audit report KP makes criticisms of the Registrant’s dysphagia assessment dated 8 April 2013. The only evidence is the note of DH. The Panel have not been provided with the assessment dated 8 April 2013. The material subject to the audit has not been provided to the Panel to corroborate the opinion expressed. The Panel is also not able to consider the assessment dated 8 April 2013 in the context of any other relevant documentation.
130. There is no admission by the Registrant and the Panel is unable to accept KP’s assertions without seeing, as a minimum, the document on which her criticism is based. The Panel found that particular 6(f) is not proved.

Particular 6(g)


131. In her written submissions the Registrant explains that she suggested the trial of a thickener, not because of a problem with dysphagia, but to test whether thickened fluids would reduce Patient F’s regurgitation. She discussed this with the nurse who delivered the trial.


132. The Panel found that particular 6(g) is proved on the admission of the Registrant and the evidence of KP’s audit.


133. The Panel accepted the Registrant’s assertions about the particular circumstances relating to Patient F and that in those circumstances it was not unreasonable for the Registrant to suggest such a trial, and for a qualified nurse to conduct it and report back to the Registrant

.
Particular 6(h)


134. The Registrant sent a discharge report dated 30 May 2013 to all relevant professionals. She also made a further specific and comprehensive referral to the relevant Occupational Therapist. The Panel makes no criticism of the Registrant’s failure to contact other professionals with regard to this patient. The Panel did not accept the evidence of DH that the Registrant needed to speak to the Occupational Therapist face to face.


135. The Panel found that particular 6(h) is not proved.


Patient G


Particular 7(a)


136. Patient G had late stage dementia and the Registrant had identified that a Best Interest Decision needed to be made whether to continue to feed Patient G orally even though there were signs of aspiration or whether a PEG was appropriate. The Registrant doubted whether the Patient would tolerate PEG feeding. The Registrant set out in writing to the Practice Manager at Patient G’s surgery her concerns and the relevant details of her assessment in an e-mail dated 16 August 2012.


137. The criticism made of the Registrant is that she should have ensured that a clear plan was in place to manage aspiration episodes and that if she had created such a plan a costly and stressful admission to hospital for Patient G could have been avoided.

138. The question of whether or not Patient G should be treated in hospital or admitted to hospital was an issue to be dealt with in an end of life care plan. The responsibility for such a plan, where there are eating and drinking difficulties, is that of the General Practitioner.


139. In the absence of evidence of a detailed and thorough investigation of the sequence of events and the relative responsibilities of those involved in decisions made about Patient G the Panel does not consider that it has been proved that any failures were the responsibility of the Registrant.


140. The Panel found that particular 7(a) is not proved.


Particular 7(b)


141. The documentary evidence clearly shows that the Registrant identified that a Best Interest Decision was required for Patient G. She identified who should be involved in that decision and contacted the GP through appropriate channels. After chasing a decision the Registrant received an answer in the form of an e-mail from the GPs practice manager dated 29 August 2012.


142. The view of the Panel is it that the responsibility for formalising the outcome of the Best Interest Decision rests with the “Decision Maker”, i.e. the GP. There was no reliable evidence that Registrant had an obligation to do more than she did.


143. The Panel found that particular 7(b) is not proved.


Particular 7(c)


144. In her caseload review KP concluded that the review information in the progress notes for Patient F was not comprehensive and lacked specific detail and that the progress notes were unclear as to what information had been left with the carers.


145. The Panel found no clear evidence that the progress notes were not made contemporaneously and no clear evidence of inaccuracies. However, the Panel accepted KP’s evidence that the progress notes were not comprehensive, in particular in relation to the review information and what information was left with the carers.


146. The Panel found that particular 7(c) is proved, but only in relation to the comprehensiveness of the progress notes, and not the allegation that the notes were not contemporaneous or accurate.


Particular 7(d)


147. The Panel accepted the analysis of KP as part of her audit report of Patient G that there was not a record of complete RiO risk information on 9 October 2012. In the absence of any detailed denial by the Registrant the Panel did not consider that this particular point needed to be corroborated by a copy of the RiO record.


148. The Panel found that particular 7(d) is proved.
Particular 7(e)


149. The Panel considered the Registrant’s “Eating and Drinking Report” dated 16 February 2012 for Patient G which has a clear record of a capacity assessment having been made including a capacity assessment for texture modification.


150. The Panel found that particular 7(e) is not proved.


Particular 7(f)


151. The Panel examined the records for Patient G which show that there are numerous references to an aspiration risk assessment in the progress notes and in the “Eating and Drinking Report” dated 16 February 2012.


152. The Panel found that particular 7(f) is not proved.


Particular 7(g)


153. The Panel’s examination of Patient G’s records shows that the Registrant took appropriate steps to identify that Patient G did not have capacity and that a Best Interest Decision was required. She took steps to contact the GP, district nurse and palliative care services. There was insufficient evidence to show any failure to pursue the Best Interest Decision in a timely manner was the responsibility of the Registrant.


154. The Panel found that particular 7(g) is not proved.


Particular 7(h)


155. The Panel did not accept the opinion of DH that the Registrant’s response to the risks identified was inappropriate and in the absence of clear evidence from the patient records that a different response was required, particular 7(h) is not proved.
Particular 7(i)


156. The only evidence available to prove that the Registrant did not complete and/or record triggers for review and did not include them in crisis relapse plan is the reference in the audit by KP, but the note in the audit is not clear about what information was or was not recorded under the triggers for review or the crisis review plan. The notes show that such a plan was completed on 1 April 2012.


157. The records on which KP’s audit was based were not made available to the Panel. Furthermore an examination of the records that are available implies that a significant amount of information about triggers and relevant information for a crisis relapse plan had been passed to Patient G’s carers.


158. The Panel found that particular 7(i) is not proved.


Decision on grounds


159. The Panel found that the Registrant was an experienced Band 7 SLT. She had the knowledge and ability to keep accurate records. Up to 2012 the Registrant worked well with her supervisor KP and no serious problems were identified. Her supervisor, KP, had picked up in supervision meetings in 2012 increasing problems with comprehensive record keeping. There is no clear evidence of any reason for this deterioration in the standard of the Registrant’s record keeping. In particular there is no evidence that the Registrant’s health was a factor, and the Registrant has never attributed the issues to her health. She believes that KP placed undue emphasis on her health in supervision meetings.


160. The Panel found that the Registrant had the knowledge, skills and ability to complete records to an appropriate standard when working as a Band 7 specialist SLT and that the facts found by the Panel do not amount to a lack of competence.


161. The Panel noted that there is no definition of misconduct, but there is guidance in the case of Roylance v GMC that misconduct is “a word of general effect, involving some act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a medical practitioner in the particular circumstances”. The misconduct must be serious in that it falls well below the standards that are expected.


162. The Panel reviewed the facts found proved. Those factual particulars essentially relate to shortcomings in the Registrant’s record keeping. These shortcomings mostly involved inconsistencies in where she documented some of the information and assessments rather than the absence of records. As such they did not involve an immediate risk of harm to the patients concerned. However, a number of the Registrant’s shortcomings continued over a significant period of time, and all of them related to very vulnerable patients. Furthermore there were failures in several instances to record clearly what food the patient could or could not eat which did have the potential to cause harm to the patient.


163. The Panel found that the Registrant’s conduct was in breach of the HCPC Standards of Conduct, Performance and Ethics particular 1 “you must act in the best interests of service users” and standard 10 “you must keep accurate records”. The Registrant’s conduct was also in breach of the Standards of Proficiency paragraph 2b.5 “be able to maintain records appropriately”.


164. In the Panel’s judgment, whilst none of the individual record keeping failures is serious enough to amount to misconduct, when looked at as a whole the Registrant’s failures, in the findings of fact found by the Panel, are serious enough to constitute misconduct.


Decision on Impairment


165. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired”. The Panel considered guidance from cases of Grant v GMC, Cohen v GMC and Brennan v HCPC as summarised in the Practice Note. The Panel considered the Registrant’s fitness to practise at today’s date.


166. The Panel considered the question of the Registrant’s current fitness to practise from the personal perspective and from the public perspective. The Panel first considered the personal perspective.


167. Following the investigation carried out by KP the Registrant remained employed by the Trust, but at a Band 5 level and subject to an action plan. The Registrant was required to undertake dysphagia training which was the Manchester Post-Basic Dysphagia Course. The Registrant successfully completed this course which comprised a theory element, a period of supervised practice, submission of a case study and reflective log and an exam. The Registrant was also subject to a comprehensive Action Plan in which she worked under supervision. She was required to complete a number of actions including further training in the use of RiO. The evidence of KP was that the Registrant completed the actions in her action plan including the work to improve her record keeping. KP noted that there was a significant improvement in the Registrant’s record keeping. KP had no reservations about the Registrant’s work in this regard.


168. Prior to the investigation carried out by DH, the shortcomings of the Registrant were being addressed by KP in supervision and further formal steps were implemented after the investigation. The failings of the Registrant in her record keeping were remediable, and the comprehensive steps taken after the investigation were effective in remedying the shortcomings as found by the Panel. This is confirmed by the evidence of KP who was satisfied with the standard of the Registrant’s record keeping at the conclusion of the action plan. The Panel did not identify any further steps that the Registrant could or should have taken to remedy the deficiencies in her record keeping.


169. The Panel considered the Registrant’s level of insight and found that she had demonstrated good insight into her shortcomings as found by the Panel. The Panel noted that when she was interviewed as part of the investigation the Registrant admitted that the quality of her record keeping was not to the required standard. Her admissions made in her interviews are broadly similar to the admissions made in her written submissions to the Panel. In her written submissions she acknowledges that she benefitted from a 1:1 session from a RiO trainer and from RiO risk assessment training which she found very useful. She adds that this helped her to “see the importance of accurate recording”.

170. The Panel gave no weight to the evidence of the Registrant’s apparent reluctance to undertake some of the requirements imposed on her by the Trust as it appeared to the Panel that there were a number of much more likely explanations for her attitude than that she lacked insight into the shortcomings in her record keeping as found by the Panel. In relation to matters which appear to have been remediable through informal management action she was subject to what she might have regarded as a draconian capability procedure involving a very substantial demotion.


171. Furthermore the Panel noted that there was clear evidence from KP and other colleagues that she was a good clinician with a wealth of experience, sincere concern for her patients and a high level of specialist expertise in certain areas.


172. Taking into account all the above matters the Panel concluded that there was no real risk of repetition of the deficiencies in the Registrant’s record keeping. Taking into account the length of time which has elapsed since early 2013, the remediation, the Registrant’s good insight and the absence of any real risk of repetition the Panel concluded that, from the personal perspective, the Registrant’s current fitness to practise is not impaired.


173. The Panel next considered the Registrant’s current fitness to practise from the public perspective. The Panel had in mind the crucial importance of considering the wider public interest considerations which include the need to maintain public confidence and uphold standards of conduct. The Panel carefully considered the perspective of a member of the public and the level of concern that they might have about the findings made by the Panel.


174. In this case no actual harm was caused to any patient as a result of the Registrant’s failures to keep adequate records. The allegations that might have been of greatest concern from a public point of view are the allegations relating to Patient G and the events that triggered the investigation because of the distress to G and members of G’s family resulting from the hospital admission. The allegations relating to this matter are particular 7(a) and 7(b) and the Panel has found that these allegations are not proved. The particulars that the Panel found proved relating to Patient G are general record keeping matters and are unrelated to the Best Interest Decision.


175. The Panel’s conclusions on the personal element are relevant to its assessment of the public component. The Panel concluded that a member of the public would not be concerned that the Registrant is free to practise without restriction because there is no ongoing risk to the public. This is not a case where the Registrant is in breach of a fundamental tenet of the profession. She has adopted a professional attitude to the remediation of the deficiencies in her record keeping.


176. The Panel considered carefully the point that the Registrant has in the past acted in a way which put service users at unwarranted risk of harm and whether this, by itself, required a finding that her fitness to practise is currently impaired. The Panel’s assessment is that the degree of the Registrant’s culpability is relatively low. This is a case where the conduct is sufficiently serious to constitute misconduct, but it is at the lower end of the scale of seriousness. The extent of the risk of potential harm to patients is also at the low end of the scale.


177. It was confirmed in the case of Cohen that there are cases where a Panel can conclude that the Registrant’s current fitness to practise is not impaired, provided such a finding does not undermine the critically important public policy considerations. The Panel concluded that in the circumstances of this case, approximately three years after the relevant events, public confidence in the profession would not be undermined if a finding of impairment were not made. The Regulator has upheld standards by investigating this case and by the Panel’s conclusion that the facts amounted to misconduct. The Panel’s assessment is that a finding that the Registrant’s current practise is impaired is not necessary to uphold standards of conduct or to maintain public confidence in the profession.


178. For all the above reasons the Panel concluded that the Registrant’s current fitness to practise is not impaired.

Order

No information currently available

Notes

This Conduct and Competence Committee Panel Final Hearing will be taking place at HCPC London on Tuesday 12 April 2016 to Friday 15 April 2016 at 10:00am

Hearing History

History of Hearings for Mrs Kay Thornley

Date Panel Hearing type Outcomes / Status
12/04/2016 Conduct and Competence Committee Final Hearing No further action