Paul R Butler

Profession: Occupational therapist

Registration Number: OT18586

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 25/07/2016 End: 16:00 28/07/2016

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

During the course of your employment as an Occupational Therapist with North Devon Healthcare NHS Trust between April 2003 and 10 May 2013:

1. In March 2012, in relation to two patients, you:

Did not conduct Occupational Therapy assessments, which led to the patients being discharged home without seeing an Occupational Therapist.

2. In or around April 2012, you did not record information in the ward log book in order to identify which member of staff had been allocated to each patient and / or which patients had been discharged.

3. Between September 2011 and October 2011, a Clinical Support Worker needed to remind you of tasks on a regular basis.

4. On 16 August 2011, during a home assessment with a patient, you:

a. Made the patient repeat a shower stool position assessment approximately five times;

b. In assessing mobility issues in the patient's lounge, advised the patient to remove her sofa completely, instead of making minor adjustments to the position of other furniture;

5. On 7 March 2013, you were assigned "Patient A" and you:

a. Did not:

i. Set out achievable SMART goals;

ii. Promptly organise the access visit;

iii. Attend the access visit in a timely manner.

b. Produced a report in relation to Patient A which you omitted:

i. Furniture measurements;

ii. Equipment needs and / or details of equipment that was already in-situ in the patient's home;

iii. Flooring types;

iv. The correct type of heating;

v. A summary;

6. On 7 or 8 March 2013, further to a discussion with the wife of "Patient B", you did not record that B's wife stated she could not cope with B at home.

7. The matters set out in paragraphs 1 - 6 constitute misconduct and/or lack of competence.

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

Finding

Background:
1. The Registrant was employed by the North Devon Health Care Trust as an Occupational Therapist from 2000. The Registrant was initially based in the Barnstaple Rehabilitation Team and was transferred in October 2008 to the Bideford Complex Review Team as a Band 7 Advanced Practitioner. In March 2009, the Trust’s Capability Procedure was initiated due to concerns in relation to the Registrant’s managerial skills and his supervision of members of staff. On 9 August 2010 the Registrant was issued with a final written warning and was redeployed to work as a Band 6 Specialist Occupational Therapist in the medicine team at the North Devon District Hospital.
2. Between August 2011 and November 2011, concerns were raised by the Registrant’s team manager in relation to his clinical decision making. On 9 November 2011, a meeting was held with the Registrant to discuss the concerns and to inform him that the Trust would again be initiating a capability process. On 18 November 2011 the Registrant commenced a four-month period of long term sickness and returned to work on 19 March 2012, whereupon performance objectives were put in place for him.  The Registrant failed to meet the performance objectives set. A capability review meeting was held on 23 April 2012 and on 8 May 2012, the Registrant commenced another long term sickness leave period for approximately nine months.
3. On 6 December 2012 a meeting was held with the Registrant to discuss his return to work and it was agreed that he would undertake a twelve-week redeployment placement as an Occupational Therapist (Band 5) in the Orthopaedic Team at the North Devon District Hospital. The Registrant returned to work, initially on a part time basis on 28 January 2013. A number of objectives were put in place which the Registrant was informed by his new team manager, should be met within two months.
4. On 8 March 2013, the Registrant, having returned full time on that day, suffered a medical episode and was signed off sick. On 23 March 2013, Occupational Therapy advised that the Registrant be re-deployed to another area. On 15 April 2013 the Registrant commenced a new role as a Band 2 Medical Laboratory Assistant in the Pathology Department. In May 2013, the Registrant’s manager reported that he was unable to sign off the Registrant’s competences for the Band 2 Laboratory Assistant role.
5. Following a further meeting on 10 May 2013, the Registrant subsequently completed an application for retirement on ill-health grounds which was accepted. The referral to the HCPC was made by the North Devon Health Care NHS Trust on 28 June 2013.
Decision on Facts:
6. The Panel received various bundles of papers, consisting of an HCPC bundle of witness statements and exhibits, and the Registrant’s bundle consisting of medical and testimonial evidence. The Panel heard oral evidence from three witnesses called on behalf of the HCPC and from the Registrant. In respect of the HCPC witnesses, the Panel found that each of them gave open and honest evidence and had tried their best to assist and support the Registrant in performing his tasks. The Panel found that the credibility of each of the HCPC witnesses was strengthened by their willingness to highlight positive aspects of the Registrant’s practise, in particular his rapport with service users and their families.
7. In relation to the Registrant's evidence, the Panel found that whilst he was prepared to make admissions during the course of his evidence he lacked insight into the nature and seriousness of the allegations. The Panel did not find the Registrant to be a reliable witness, given his inability to recall important matters and his tendency to attribute any failings to his adverse health and lack of confidence at that time.
8. The Panel had regard to all of the evidence presented. The Panel took into account the submissions made by both counsel and received and accepted the Legal Assessor's advice.
9. The Panel took into account that the Registrant admitted the following  Particulars, 2, 3, 4a, 5(a) (ii) and (iii), 5(b) (i) – (v) and 6.The Panel considered that all of the admitted Particulars were also supported by the oral and documentary evidence adduced. Accordingly, the Panel found the admitted facts proved.
10. In relation to Particular 1(a), the Registrant accepted that he was the only Occupational Therapist on the ward at the time and that it was his responsibility to conduct Occupational Therapy Assessments. The Panel noted the Registrant’s evidence that he had “missed” one of the two patients and that the other patient had been discharged. The Panel was satisfied that this Particular was proved to the required standard.
11. In relation to Particular 4b), the Panel noted that the Registrant did not dispute the accuracy of the written statement made by his support worker and also his acceptance that what she described probably happened. Accordingly, the Panel found this Particular proved.
12. In relation to Particular 5(a)(i) the Panel was presented with clear evidence from witness PP that the Registrant was unable to set out achievable goals. The Registrant in his evidence, also conceded that fact. Accordingly, the Panel found this Particular proved.
Decision on Grounds:
13. The Panel considered each of the facts found proved separately. In relation to Particular 1(a) the Panel considered that the Registrant’s failure to conduct Occupational Therapy Assessments had the potential to cause unwarranted harm to these patients who were discharged without their needs being assessed. The Panel was satisfied that this failure would be regarded as deplorable by fellow Occupational Therapists and was a serious failing which amounted to misconduct.
14. In relation to Particular 2, the Panel was satisfied that the log book is a crucial document in the ward and has a significant role in patient safety. The Panel regarded the Registrant’s failure to record information in the log book as a failure to perform a crucial part of his job as part of a multidisciplinary team. The Panel was satisfied that this failure was serious, would be regarded as deplorable by other Occupational Therapists and was therefore misconduct.
15. In relation to Particular 3, the Panel had regard to the written statement of the Registrant’s support worker that over a two week period when he was meant to be supervising her, she had constantly to remind him to perform tasks which were fundamental to his job. The Panel considered that the Registrant had abrogated his supervisory responsibilities to his support worker and instead relied on her to remind him of what to do. The support worker had no confidence in the Registrant being able to do his job properly. The Panel was satisfied that this conduct fell far below that required and amounted to misconduct.
16. In relation to Allegation 4(a) the Panel was mindful that the home assessment in question concerned an elderly patient who was blind and had sustained a recent lower limb fracture. The Panel also noted the evidence that the patient was getting tired by being repeatedly being assessed for a shower stool position by the Registrant. The Panel was satisfied that such conduct displayed a lack of concern for the patient, was unnecessary, was serious and amounted to misconduct.
17. In relation to Allegation 4(b), which involved the same patient as in 4(a), the Panel found that the Registrant’s conduct was unacceptable but did not have any detrimental effect. The Panel concluded this to amount to lack of competence.
18. The Panel considered the proved facts set out in Allegations 5(a) (i) – (iii) to amount to lack of competence as it did also in relation to Allegations 5(b)(i) – (v). The Panel considered all of these Particulars to be matters which the Registrant ought to have known how to achieve and his failure to do so displayed an unacceptably low level of performance.
19. In relation to Allegation 6, the Panel considered that the position faced by Patient B’s wife, of which the Registrant was well aware, constituted a crisis situation which the Registrant ought to have recorded at the time, thereby avoiding the unnecessary stress to which she was subjected. The Panel was satisfied that this was a serious omission on the Registrant’s part amounting to misconduct.
20. The Panel was satisfied that the Registrant had breached the following standards set out in the HCPC Standards of Conduct, Performance and Ethics:
• 1 - You must act in the best interests of service users;
• 5 - You must keep your knowledge and skills up to date;
• 7 - You must communicate properly and effectively with service users and other practitioners.
And the following standards set out in the HCPC Standard of proficiency for Occupational Therapists:
• 4 - Be able to practise as an autonomous professional, exercising their own professional judgement;
• 13.1 - understand the effect of occupational dysfunction and deprivation of individuals, families, groups and communities and recognise the importance of restoring and facilitating opportunities with the aim of achieving occupational wellness.
• 10 - to be able to maintain records appropriately
21. For all the above reasons, the Panel was satisfied that the facts found proved in relation to Allegations 1, 2, 3, 4(a) and 6 amount to misconduct and that those proved in relation to Allegations 4(b), 5(a) (i)-(iii) and 5(b) (i) – (v) amount to lack of competence.


Decision on Impairment: 
22. The Panel considered the extent of the Registrant’s misconduct and lack of competence. The Panel also noted that the Registrant had been set performance targets which he repeatedly failed to achieve over a period of years.
23. The Panel considered that the Registrant displayed limited insight both as to how his misconduct and lack of competence arose and also how to avoid it ever being repeated. Apart from providing testimonial evidence to the effect that he no longer suffers from certain medical conditions, the Registrant presented no evidence that he has taken any positive steps to improve his knowledge and his practice.
24. The Panel concluded that whilst the Registrant's misconduct and lack of competence is possibly remediable if sufficient adjustments are put in place, remediation would be very difficult, given that the Registrant was unable to perform adequately as a Band 7, Band 6 or Band 5 Occupational Therapist or even as a Band 2 Laboratory Assistant.
25. The Panel noted that the Registrant has not practised as an Occupational Therapist for almost three and a half years and has taken no steps to keep his practice up to date other than to read the Journal of Occupational Therapy and look at “the website”.
26. Accordingly, the Panel considered that there remains a real risk of repetition such that Patients could be put at unwarranted risk of harm and that the reputation of the profession could be damaged by the Registrant in the future.
27. For these reasons, the Panel determined that the Registrant’s fitness to practise is currently impaired.
Decision on Sanction:
28. The Panel considered the submissions made by Mr Ross on behalf of the HCPC and those of Mr King on behalf of the Registrant. The Panel received and accepted the advice of the Legal Assessor.
29. The Panel was mindful that the purpose of any sanction was not to punish the Registrant but to protect the public and maintain public confidence in the profession and the HCPC as its regulator, by the maintenance of proper standards of conduct and behaviour.
30. The Panel had regard to the Indicative Sanctions Policy. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of seriousness.
31. In determining the appropriate and proportionate sanction, the Panel had regard to its findings in relation to misconduct and lack of competence, involving failures in record keeping, not acting in the best interests of service users and failing to act autonomously.
32. The Panel regarded the Registrant’s repeated failures to achieve performance targets covering core elements of Occupational Therapy over several years and in different roles as an aggravating feature in this case. The Panel also regarded the Registrant’s over-dependency on others and limited insight as aggravating features. The Panel regarded the Registrant’s substantial admissions, his engagement with these proceedings, his long career as an Occupational Therapist between 1990 and 2009 without any regulatory concerns and his positive testimonials, as mitigating features. The Panel also had regard to the Registrant’s health issues which may have contributed to his misconduct and lack of competence. The Panel regarded it as a mitigating factor that the Registrant has taken some steps to resolve his ill health.
33. The Panel first considered taking no action, however it concluded that this would be inappropriate and would not be sufficient to protect service users or the reputation of the profession. The Panel considered that this was not an appropriate case for mediation and that a caution order would be insufficient given the seriousness and totality of the misconduct and lack of competence.
34. The Panel carefully considered conditions of practice and concluded that given the Registrant's continued engagement, conditions of practise could be formulated which would adequately protect the public and assist in the Registrant achieving full remediation. The Panel further considered that a suspension order would be disproportionate and punitive at this stage.
35. Accordingly, the Panel determined to impose the following Conditions of Practice for a period of 18 months which is a proportionate and sufficient time to obtain employment and to demonstrate compliance with the Conditions of Practice.
(1) You must confine your practice as an Occupational Therapist to the grade which equates to a newly qualified Occupational Therapist;
(2) You must place yourself and remain under the supervision of a supervisor of Band 6 or above working at the same location, who is registered with the HCPC as an Occupational Therapist and supply details of your supervisor to the HCPC within 28 days of commencement of any employment as an Occupational Therapist.
(3) You must meet with your Supervisor at least monthly and follow their advice and recommendations.
(4) You must work with your Supervisor to formulate a Personal Development Plan designed to address the deficiencies in your practice specifically; working autonomously, developing appropriate SMART goals and treatment plans, record keeping and report writing.
(5) Within three months of commencement of any employment as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.
(6) You must allow your Supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
(7) You must maintain a reflective profile detailing the outcomes of each Supervisory meeting and you must also prepare a reflective account which demonstrates how you have made adjustments to your practice to address your previous failings, both of which to be provided to the HCPC 14 days prior to any review of this order.
(8) You must promptly inform the HCPC when you start employment as an Occupational Therapist or take up any other or further employment as an Occupational Therapist.
(9) You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.
(10) You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work as an Occupational Therapist;
B. any agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application).

Order

The Registrar is directed to annotate the Register to show that, for a period of 18 months from the date that this Order comes into effect (“the Operative Date”), you, Mr Paul R Butler, must comply with the following conditions of practice:
(1) You must confine your practice as an Occupational Therapist to the grade which equates to a newly qualified Occupational Therapist;
(2) You must place yourself and remain under the supervision of a supervisor of Band 6 or above working at the same location, who is registered with the HCPC as an Occupational Therapist and supply details of your supervisor to the HCPC within 28 days of commencement of any employment as an Occupational Therapist.
(3) You must meet with your Supervisor at least monthly and follow their advice and recommendations.
(4) You must work with your Supervisor to formulate a Personal Development Plan designed to address the deficiencies in your practice specifically; working autonomously, developing appropriate SMART goals and treatment plans, record keeping and report writing.
(5) Within three months of commencement of any employment as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.
(6) You must allow your Supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
(7) You must maintain a reflective profile detailing the outcomes of each Supervisory meeting and you must also prepare a reflective account which demonstrates how you have made adjustments to your practice to address your previous failings, both of which to be provided to the HCPC 14 days prior to any review of this order.
(8) You must promptly inform the HCPC when you start employment as an Occupational Therapist or take up any other or further employment as an Occupational Therapist.
(9) You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.
(10) You must inform the following parties that your registration is subject to these conditions:
A. any organisation or person employing or contracting with you to undertake professional work as an Occupational Therapist;
B. any agency you are registered with or apply to be registered with (at the time of application); and
C. any prospective employer (at the time of your application).
The order imposed today will apply from the expiry of the 28 day appeal period (the operative date).
This order will be reviewed again before its expiry.

Notes

Interim Order:
Having heard submissions from Mr Ross on behalf of the HCPC and from Mr King on behalf of the Registrant and having received the advice of the Legal Assessor, the Panel determined that it was necessary for the protection of the public and otherwise in the public interest to make an interim conditions of practice order for the period of 18 months.

The Panel makes an Interim Conditions of Practice Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  The Conditions are the same as set out in the substantive sanction (see above).

This order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

This Conduct and Competence Committee Final Hearing took place at HCPC, London on Monday 25 July 2016 to Wednesday 27 July 2016.

Hearing History

History of Hearings for Paul R Butler

Date Panel Hearing type Outcomes / Status
08/06/2018 Conduct and Competence Committee Final Hearing Voluntary Removal agreed
17/01/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
25/07/2016 Conduct and Competence Committee Final Hearing Conditions of Practice
19/10/2015 Conduct and Competence Committee Final Hearing Adjourned