Josephine M Conaty

Profession: Physiotherapist

Registration Number: PH41632

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 02/02/2016 End: 14:00 02/02/2016

Location: Jurys Inn Belfast, Fisherwick Place, Belfast, BT1 6DY

Panel: Health Committee
Outcome: Suspended

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Allegation

On 02 and 03 February 2015 a Panel of the Health Committee considered the following allegation:

Your fitness to practise as a Physiotherapist is impaired by reason of your health.

At that hearing the Panel found the above allegation proved and the Registrant’s fitness to practise to be impaired. A Suspension Order for a period of 12 months was imposed.

Finding

Preliminary Matters:

Service

1. The Panel were informed that the Notice of Hearing was sent to the Registrant’s address as it appears on the Register on 15 December 2015. The Panel considered the Notice of Hearing sent to the Registrant and the representations of Ms Hamilton. The Panel is satisfied that good service has been effected in accordance with the Rule 3 of the Health and Care Professions Council (Health Committee) (Procedure) Rules 2003 (“The Rules”).

Proceeding in the absence of the Registrant

2. Ms Hamilton submitted that, in accordance with Rule 11 of the Rules, it was appropriate to proceed in the absence of the Registrant. Ms Hamilton invited the Panel to consider that the Registrant’s absence was a voluntary one. She referred the Panel to the content of a file note of telephone calls with the Registrant on 29 January 2016. In this file note the Registrant indicated that she had received the Notice of Hearing sent on 15 December 2015, but was unhappy with some errors within it. These errors related to the date of the previous hearing and the type of Committee that had conducted that hearing. The HCPC’s officer undertook to send out a further notice with the correct details and then advised the Registrant of the powers that this Committee has today. When asked during these telephone calls if she was happy for the hearing to proceed in her absence, the Registrant responded yes. The Registrant also confirmed that she did not wish to be represented and had no further documents to submit to the Panel.

3. The Panel considered the submissions made, the advice of the Legal Assessor and the content of the HCPC’s practice note “Proceeding in the Absence of the Registrant”. The Panel is aware that the discretion to proceed in the absence of a registrant is to be exercised with the utmost caution. The Panel considered the factors identified in the case of R v Jones [2003] 1 AC 1. The Panel considered the content of the telephone note dated 29 January 2016 and is satisfied from it that the Registrant is aware that this hearing was scheduled for today. She had indicated her willingness for the hearing to proceed in her absence and has not requested an adjournment. There is nothing to indicate that the Registrant would be more likely to attend at a future hearing should this review be adjourned today. This is a statutory review and there is a public interest in conducting such reviews. The Panel is satisfied that the Registrant’s absence is a voluntary one.

Application for the hearing to be heard in private

4. Ms Hamilton made an application for this hearing to be conducted in private under Rule 10(1)(a) of the Rules. She advised the Panel that much of the evidence it will hear relates to the Registrant’s health.

5. The Panel considered the submissions made, the advice of the Legal Assessor and the HCPC Practice Note ‘Conducting Hearings in Private’. The Panel, having read the contents of the hearing bundle, is aware that much of the evidence within that bundle relates to the Registrant’s health. Having considered this the Panel finds, on balance, that the open justice principle is outweighed by the need to protect the private life of the Registrant and grants the application.

Background: 

6. This is the first review of a Suspension Order imposed on the Registrant’s registration on 3 February 2015.The Registrant was employed by the Belfast Health and Social Care Trust (“The Trust”) from 23 February 1994 as a part-time Senior 1 (Band 6) Physiotherapist specialising in a mixed caseload of out-patients and musculoskeletal patients. During her employment she had disclosed to her employers that she suffered from a medical condition and as a result reasonable adjustments were made. Over the course of her employment the Registrant had a number of absences from work, most it seems were related to her condition.

7. Concerns about the Registrant’s performance began around November 2009 and continued throughout 2009 and 2010. These were about: diary management; lateness to work; her relationship with a colleague; her attitude towards patients; her behaviour in staff meetings; her absences from work and the lack of notice when she had medical appointments. Prior to going on sick leave the Registrant handed over 3 bundles of patient cards; the first marked urgent; the second less urgent and the third, patients who could wait until her return. The urgent cards were distributed among the team so they could cover the Registrant’s patients during her absence. Following this a number of issues were reported by the staff who took over the Registrant’s urgent files. These were predominantly issues relating to clinical reasoning and record card documentation.

8. A Trust wide audit on physiotherapist’s patient files was carried out in February 2011.The audit was conducted in accordance with the Chartered Society of Physiotherapists (“CSP”) documentation. During this audit ten patient files were selected randomly from each physiotherapist’s workload and were assessed against the relevant sections of the 64 point plan identified by the CSP. The Registrant was found to have scored the lowest total out of all the physiotherapists employed by the Trust in the audit. The areas of concern highlighted during this audit were:

• A failure to record all the required information in both the subjective and objective assessments;
• Failure to record results of pain tests;
• Failure to show clinical reasoning in patient notes;
• Failure to record whether palpation tests were undertaken;
• Failure to record agreed outcome measures;
• Failure to record advice given to patients for example analgesia or exercise advice;
• Failure to complete appropriate assessment forms;
• Failure to record notes in a logical way in accordance with undergraduate training  - “SOAP” (subjective objective, analysis and plan);
• Failure to record and measure outcome;
• Failure to carry out risk assessments.

9. As a result the Registrant’s files were examined in more detail. This review revealed similar problems to the Trust-wide audit plus many more to include: a repeated failure to correctly complete body charts, a lack of objective assessments in examinations and a failure to complete appropriate assessments.

10. A formal patient complaint was also received about the Registrant on 18 April 2011. The patient complained that the Registrant refused to treat her using traction which had previously been of benefit to the patient. The patient also complained that the Registrant had given her exercises which were uncomfortable and of no help. The patient reported that her condition had improved dramatically once she had been transferred from the Registrant’s care. The patient also complained that the Registrant was unsympathetic and had no understanding of the patient’s condition. This complaint was investigated and it was concluded that the assessment should have been more detailed.

11. Following these issues a decision was taken to initiate the Trust’s capability procedure. The Registrant then went on sickness absence on 15 November 2011. Apart from a brief return, between 13 February 2012 and 8 May 2012 she has been off sick ever since.

12. The matter was then referred to the HCPC on 6 February 2012 and 28 May 2012.

13. The substantive Panel was satisfied that the allegation had been proved to the requisite standard. It found that the Registrant presented a risk to patients. The substantive Panel found that this was a case where the important public policy considerations were paramount. The substantive Panel concluded that, given the persisting nature of the registrant’s health conditions, the need to uphold proper professional standards and maintain public confidence in the profession would be seriously undermined if a finding of impairment were not made. Having considered both the personal and the public component the substantive Panel found that the Registrant’s fitness to practise was impaired and that the allegation was well founded.

14. The substantive Panel found that a suspension order, the most severe sanction available, was the appropriate and proportionate sanction. It decided that the health conditions suffered by the Registrant meant that she posed a real risk of harm to the public. The substantive Panel found that a Suspension Order would serve to protect members of the public and was the only sanction that would uphold public confidence in the profession and in the regulatory process. Given the nature of the Registrant’s health conditions the substantive Panel decided that the maximum period of suspension, one year, was appropriate.

15. Thus review Panel heard from the HCPC’s representative Ms Hamilton. She outlined the history of this case and reminded the Panel that its function today was not to go behind the decision of the substantive panel, but to carry out a comprehensive review in the light of all of the circumstances known today. Ms Hamilton referred the Panel to the content of the HCPC file note of telephone conversations with the Registrant on 29 January 2016. In this note it is reported that the Registrant wanted the Panel ‘to leave the suspension for another year’. Ms Hamilton submitted that there was no current information before this Panel as to the Registrant’s health condition. She submitted that in the absence of any such information the Panel could not be satisfied that the Registrant had insight into her health condition. On that basis Ms Hamilton submitted that the Registrant’s fitness to practise remained impaired. In relation to the appropriate sanction, Ms Hamilton suggested that in the absence of any new evidence it would not be possible to formulate conditions that would be practicable, workable or enforceable.

16. The Panel has conducted a comprehensive review of the current order in light of all the circumstances known today. It has considered the submissions of Ms Hamilton and the limited information contained in the HCPC file note of 29 January 2016. The Panel is aware that its primary duty is to determine whether or not the Registrant’s fitness to practise remains impaired as of today. In deciding this the Panel has brought its own professional judgement to bear and has considered the HCPC policy document “Finding that Fitness to Practise is Impaired”. The Panel accepted the advice of the Legal Assessor.

17. The Panel first considered whether the Registrant’s fitness to practise remains impaired. The Panel has received no new information about the Registrant’s health condition or any submissions from the Registrant to demonstrate she has full insight into her condition. In essence there is nothing to indicate that anything has changed since the original order was made.  The Panel finds that in the circumstances the Registrant continues to present a risk to patients. The Panel was also satisfied that public confidence in the profession and in the regulatory process would be undermined if a finding of current impairment was not made. Using its own independent professional judgement the Panel finds that the Registrant’s fitness to practise remains impaired today.

18. The Panel has borne in mind that the primary function of any sanction is to address public protection, while giving appropriate weight to the public interest considerations which includes maintenance of public confidence in the profession and in the regulatory process. The Panel applied the principle of proportionality as set out in the HCPC Indicative Sanctions Policy and approached the issue of sanction in ascending order of severity.

19. The Panel considered the option of taking no further action or imposing a Caution Order, but decided this would not be sufficient to protect the public. There is no evidence that the Registrant has taken steps to remedy her health condition and accordingly a more severe sanction is required.

20. The Panel considered replacing the current order with a Conditions of Practice Order. The information before the substantive panel was that the Registrant was too ill to work. There is no new information about the Registrant’s health condition before this panel to suggest that anything has changed. Accordingly the Panel has decided that such a sanction would not be in the public interest or indeed in the interests of the Registrant. In any event it would not be possible to formulate appropriate, realistic and verifiable conditions and, more importantly, conditions that would sufficiently protect the public.

21. The Panel has decided that the most severe sanction available to it, a Suspension Order, is the appropriate and proportionate sanction to impose in this case.  The health condition suffered by the Registrant means that she continues to pose a real risk of harm to public. The substantive panel identified the apparently long term nature of the Registrant’s health condition and there is no new information available in relation to this. The Panel finds that extending the current Suspension Order is the only way to provide the necessary degree of public protection required in this case. The Panel finds that it is also the only available sanction that would uphold public confidence in the profession and in the regulatory process. In the circumstances of this case, and particularly in the absence of any new information about the Registrant’s health condition, the Panel has decided that it is necessary to extend the suspension for the maximum period allowed, 12 months. The Registrant indicated in the file note of 29 January 2016 that she wished to be considered for Voluntary Removal by the HCPC. Should the Registrant change her mind and decide that she wants to return to practice, a future reviewing panel might be assisted by up to date reports on her health condition, evidence of insight into the impact her medical condition has on her ability to practise and any evidence of her working with the public in either a paid or voluntary capacity.

 

Order

The Panel decided to suspend the Registrant for a further 12 months.

Notes

The Order will be reviewed before its expiry on 03 March 2017.

 

The was a Substantive Review hearing for Josephine M Conaty that took place on Tuesday 02 February 2016 before the Health Committee at the Health and Care Professions Council.

Hearing History

History of Hearings for Josephine M Conaty

Date Panel Hearing type Outcomes / Status
02/02/2016 Health Committee Review Hearing Suspended