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Proceeding in private
1. Ms Aumeerally, on behalf of the HCPC, made an application for the entire hearing to be heard in private. The Registrant agreed with the HCPC submission.
2. The Panel determined that given the health issues present in this case, it was appropriate for the entire hearing to be conducted in private.
3. The Registrant was employed by Western Sussex Hospitals NHS Trust (“the Trust”) from 1999 as a Band 7 Specialist Home Enteral Feeding Dietitian.
4. Prior to 2008 the Registrant was regarded as very competent and confident in the performance of her role.
5. In May 2008 the Registrant returned to work following a period of sick leave. She was given reduced hours and adjusted duties and required support from Occupational Health. For a time she was able to return to normal work duties but she became unwell again and the previous measures to assist her were reinstated.
6. From August 2011 a number of incidents came to light in which the Registrant had not responded in a timely manner to patient telephone calls and/or patient referrals. There were concerns by her employer that these incidents could have resulted in inadequate care to patients and/or the imposition of additional burdens on colleagues.
7. From October 2011 the Registrant was placed under a formal capability process. She was transferred to work in the Hospital Team, which was a less autonomous role, with a view to her being assessed against objectives for a Band 7 role in that team.
8. Following a further deterioration in the Registrant’s health, it was agreed in January 2012 that the Registrant would commence an eight-week performance improvement plan for a Band 2/3 role. A Band 3 role is not a qualified Dietitian role.
9. The capability process proceeded to a final hearing on 19 March 2012, when the Registrant was dismissed because the Panel was not satisfied that she would be able to perform as a Band 7 Enteral Feeding Dietitian in the future.
10. Following the Registrant’s dismissal by the Trust, the matter was referred to the HCPC.
11. On 2 March 2015, the Health Committee determined that the Registrant’s fitness to practise was impaired by reason of health and imposed a 12 month Suspension Order.
12. A review hearing took place on 23 February 2016. The review panel noted the following:
• Although the Registrant had not engaged with the original Health Committee hearing, she had engaged with the review process;
• The lack of any cogent medical evidence to indicate that the Registrant’s fitness to practise was no longer impaired by reason of her medical condition. The Panel noted that, whilst the Registrant was in remission, she had a recurring condition.
• The Registrant’s submissions that she no longer wished to practise as a Dietitian and had not done so since March 2012, and had not complied with any CPD requirements.
13. The review panel concluded that although the Registrant had significant insight into her medical condition, her fitness to practise remained impaired by reason of that medical condition. The review panel determined to impose a further suspension Order for a period of 12 months.
14. Ms Aumeerally outlined the history of this case. She submitted that the Voluntary Removal Agreement would maintain public confidence in the profession and would not be detrimental to the wider public interest.
15. The Registrant submitted that there has been no change in her circumstances since the review hearing in February. She confirmed that it remains her intention to pursue an alternative career and for that reason has not complied with the CPD requirements for Dieticians.
16. In reaching a decision on the application for Voluntary Removal from the register, the Panel carefully considered all of the information and evidence before it, including the terms of the Voluntary Removal Agreement, the oral submissions made by Ms Turner and those made by the Registrant.
17. The Panel accepted the advice of the Legal Assessor.
18. The Panel considered the criteria for Voluntary Removal. The Panel noted that Article 11(3) of the 2001 Order and Rule 12(3) of the HCPC Rules, prevents a Registrant from seeking to resign from the register whilst subject to an Allegation, a Conditions of Practice Order or a Suspension Order. The Panel also took into account the guidance contained within the HCPC Practice Note: Disposal of Cases By Consent which, in respect of Voluntary Removal states that:
“In cases where the HCPC is satisfied that it would be adequately protecting the public if the Registrant was permitted to resign from the Register it may enter into a Voluntary Removal Agreement allowing the registrant to do so, but on similar terms to those which would apply if the registrant had been struck off.”
19. The Practice Note also states that one of the key criteria for considering a disposal by consent is whether “any remedial action proposed by the registrant and to be embodied in the Consent Order is consistent with the expected outcome if the case was to proceed to a contested hearing.”
20. The Panel was aware that if it was not satisfied that removal would adequately protect the public interest, the proposed voluntary agreement should be rejected, which would mean that in due course, the case would proceed to further review hearing.
21. The Panel noted that the Voluntary Removal Agreement mirrors the terms of a Striking Off Order, in that it would prevent the Registrant from practising as a Dietician and would prevent her from making an application to be re-admitted to the register within 5 years. The Panel also noted that the Registrant was found impaired on grounds of health and has not been subject to an order for two years, which as set out in the HCPC Indicative Sanctions Policy, means that the Registrant is not currently eligible for a Striking Off Order.
22. The Panel accepted the Legal Assessors advice to take into account the purpose of the policy on Voluntary Removal Agreements and the reality of the Registrant’s situation.
23. The Panel noted that by signing the proposed Voluntary Removal Agreement the Registrant had admitted that her fitness to practise is impaired by reason of health. The Registrant made it clear at the review hearing in February 2016, that she no longer wants to practice as a Dietician and has not done so since March 2012. The Panel was satisfied that the Registrant wants to be removed from the register and therefore strict adherence to the policy on removal would not be in her best interests. The Panel therefore concluded, that in the circumstances of this case, it was appropriate to deviate from the sanction policy.
24. The Panel then went on to consider whether acceptance of the Voluntary Removal Agreement would provide adequate public protection and whether it would be detrimental to the wider public interest. The Panel also took into account the Registrant’s own interests.
25. Based on the documentary evidence and the admissions made by the Registrant, the Panel was satisfied that she remains impaired by reason of her health. As a consequence of her health the Registrant is unlikely to be able to meet the required standards of competence.
26. In all the circumstances, the Panel concluded that approval of the proposed Voluntary Removal Agreement is both proportionate and appropriate. The Panel also determined that there is a legitimate public interest in avoiding a further review hearing, in these circumstances, where full admissions have been made as to the grounds for impairment and where the Registrant has expressed a clear desire to be removed from the register.
27. Therefore, the Panel consents to the Voluntary Removal Agreement and revokes the existing Suspension Order.
If the Registrant seeks to return to the HCPC Register at any time, the application would be treated as if the registrant had been struck off as a result of that allegation.
History of Hearings for Rachael Wheeler
|Date||Panel||Hearing type||Outcomes / Status|
|19/08/2016||Conduct and Competence Committee||Final Hearing||Voluntary Removal agreed|
|23/02/2016||Health Committee||Review Hearing||Suspended|