Mrs Mervat K Lee

Profession: Physiotherapist

Registration Number: PH38491

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 14/07/2016 End: 16:00 14/07/2016

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

Panel: Conduct and Competence Committee
Outcome: Voluntary Removal agreed

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Allegation

By reason of your health, your fitness to practise as a Physiotherapist is impaired.

 

Finding

Preliminary Matters

Service

1. The Panel was provided with confirmation that the Notice of Hearing had been posted to the Registrant's registered address by first class post on 16 May 2016 and had also been sent by e-mail to her e-mail address. Accordingly, the Panel concluded that service had been complied with in accordance with Rule 3 of the HCPC (Conduct and Competence Committee) (Procedure) Rules 2012 ("the Rules").

Proceeding in absence

2. The Panel went on to consider whether to proceed in the absence of the Registrant. The Panel was aware, in accordance with the HCPC’s Practice Note entitled “Proceeding in Absence”, that it is only in rare and exceptional circumstances that the Panel should proceed to hear the case in the absence of a Registrant and then only if it is in the interests of justice. The Panel noted that the Registrant had been served with notice of today’s hearing. It further noted that the HCPC’s Case Manager had sent a further e-mail to her on 12 July 2016 asking whether the Registrant would be attending or be represented at the hearing, and in response the Registrant had replied on the same day stating “As previously indicated there is no change to previous notifications that I will NOT be present or represented”. The Panel noted that there was no application for an adjournment and that the hearing had been convened to consider a Voluntary Removal application made by the Registrant. In those circumstances, the Panel concluded that the Registrant had voluntarily absented herself from today’s hearing and determined that it was appropriate to proceed in her absence as it was in the interests of justice to do so.

Proceeding in Private

3. At the request of Ms Marris, the Panel went on to consider the question of proceeding in private since there would be disclosure about the health of the Registrant, upon which the application for Voluntary Removal was based. The Legal Assessor referred the Panel to the HCPC Practice Note entitled “Conducting Hearings in Private” which confirmed that proceedings should normally be held in public in accordance with Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules), which states:

“At any hearing—

(a) the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the Registrant, the complainant, any person giving evidence or of any patient or client, the public should be excluded from all or part of the hearing;”


4.  The Panel was mindful that, under Rule 10(1)(a), it must be satisfied that it is in the interests of justice or for the protection of the private life of a Registrant before a decision can be made to exclude the public from any proceedings. Moreover, its decision must be consistent with Article 6(1) of the European Convention on Human Rights (ECHR), which provides limited exceptions to the need for hearings to be held in public, namely that it is “in the interests of justice or for the protection of the private life of the health professional, the complainant, any person giving evidence or of any patient or client”.


5.  The Panel decided to grant the application so as to protect the private life of the Registrant and to hold the entire hearing in private on the basis that constant reference would be made to the Registrant’s health.


Background

6.  The Panel heard submissions from Ms Marris, who confirmed that the purpose of the hearing was to consider an application for the removal, by consent, of the Registrant, a registered Physiotherapist, from the HCPC register.


7. Ms Marris drew the Panel’s attention to a copy of the Voluntary Removal agreement that had been signed by the Registrant and by the HCPC’s Director of Fitness to Practise, which was an agreement to the effect that, from the date of the hearing, the HCPC would cease to take any further action against the Registrant with regard to the allegation set out above, on the understanding that the Registrant would remove herself from the Register, cease practising as a Physiotherapist and not attempt to re-join the Register. Ms Marris confirmed that if the Registrant applied to come back onto the Register at some time in the future, she would be treated the same as someone who had been struck off from the register.


8.  Ms Marris confirmed that the Registrant had initially been referred to the HCPC in June 2015 by her former employer, the Sherwood Forest Hospitals NHS Foundation Trust (“the Trust”). The Registrant had been working as a band 5 following a Stage 2 sickness capability hearing in May 2015. The Registrant had had nine short and long-term sickness absences over a period of three years, totalling 262 days. The vast majority of these days related to the health issues that are referred to in the allegation, and at the time of the termination of her employment she had been absent from work for about 9 months with her health conditions. The Registrant had subsequently been granted ill health retirement by the NHS Pension Scheme by letter dated 15 May 2015.


9.  Ms Marris went on to say that, following the HCPC’s investigation, an allegation was put before a panel of the Investigating Committee on 12 February 2016. That Panel found that there was a case to answer, in that the Registrant’s fitness to practise was impaired by reason of her health.


10. In her initial response to the allegation in December 2015, the Registrant stated that, since the termination of her employment at the Trust, she had not practised and had no intention to practise in the future. Furthermore, she said that she had intended to request removal from the register due to her on-going ill health when her registration came up for renewal. Subsequently, in a letter dated 1 March 2016, the Registrant requested voluntary removal from the register, admitting the allegations and that her fitness to practise was, and is, impaired as a result of her health conditions. In a further letter, dated 19 March 2016, the Registrant confirmed that she wished to proceed with a voluntary removal agreement. Such was sent to the Registrant and was returned, signed by her and witnessed on 10
June 2016.


11. Ms Marris further stated that the Council had taken account of the correspondence from the Registrant, in which she had accepted the allegations, had confirmed that she had retired from her chosen profession and had requested that her name be removed from the Register. The HCPC had taken into consideration her current circumstances and deemed it appropriate to agree to the proposal.


12. Ms Marris reminded the Panel that its role today was to decide whether to approve the proposed Voluntary Removal agreement before it, or to reject the proposal and refer the matter to a full hearing.


13. She confirmed that the Health and Social Work Professions Order does not explicitly provide for consent arrangements, but nonetheless there was an HCPC Practice Note entitled “Disposal of Cases by Consent” which confirmed that the Council had approved a means of allowing matters, in suitable cases, to be disposed of by consent without the expense and time that a full hearing can require.

14. She reminded the Panel that, for a case to be resolved in this way, it must be satisfied that the appropriate level of public protection is being secured and to do so would not be detrimental to the wider public interest. Ms Marris submitted that the Registrant had engaged with the HCPC and had confirmed that she had no intention to continue working as a Physiotherapist and had retired on the grounds of ill health. It was the Council’s view that the removal of the Registrant from the register secured the appropriate level of public protection as the Registrant would be prevented from practising as a Physiotherapist.


15. Moreover, the allegations related solely to the Registrant’s health and there were no allegations of misconduct. It was therefore the Council’s view that there were no wider public interest issues arising from this case and, as such, disposing of this matter by consent would not be detrimental to the wider public interest.


Decision

16. The Panel has taken account of Ms Marris’ comprehensive submissions and the advice of the Legal Assessor, who in turn referred the Panel to the Practice Note, “Disposal of Cases by Consent”. It has also considered the documentation provided.

17. The Panel has decided to grant the application for Voluntary Removal. It notes that the Registrant has been open and candid, and that she has fully engaged with the HCPC. There is a very clear basis for the application, namely her chronic health condition, which was recognised by the NHS Pension Scheme granting her Ill Health Retirement Benefits. Moreover, the Panel is satisfied that the appropriate level of public protection would be secured and to grant the application would not be detrimental to the wider public interest, especially since there were no competence or misconduct issues. The Panel has therefore concluded that the Voluntary Removal of the Registrant from the register is both appropriate and proportionate.

Order

Order: That the Registrar is directed to remove the name of Mrs Mervat K Lee from the Register with immediate effect.

Notes

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.

Hearing History

History of Hearings for Mrs Mervat K Lee

Date Panel Hearing type Outcomes / Status
14/07/2016 Conduct and Competence Committee Final Hearing Voluntary Removal agreed