Colin G Towner

Profession: Occupational therapist

Registration Number: OT50671

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 06/06/2016 End: 16:00 07/06/2016

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

During the course of your employment as an Occupational Therapist at Surrey and Borders Partnership NHS Foundation Trust:

 

1. On 5 July 2013, you did not conduct risk assessments prior to taking 5 vulnerable people who use services (A, B, C, D and E) on a walk.

 

2. Your actions in 1 above, placed service users at risk.

 

3. On or around 24 May 2013, following a home assessment with Service User F you did not complete an adequate report in that;

a. There was no background history recorded;

b. Information relating to agencies involved with the service user was not recorded;

c. Statements made in the report were contradictor;

d. The risks recorded did not adequately reflect the service user's situation;

e. An assessment of the service user's capacity was not recorded;

f. Referral and/or liaison with other agencies were not recorded.

 

4. In or around August 2013, you did not complete an adequate washing and dressing assessment report in respect of Service User G in that:

a. The report was completed on the incorrect template document;

b. There was no clinical formulation recorded;

c. The risks recorded were inadequate;

d. There were no recommendations recorded.

 

5. Your actions described in paragraphs 1-4 amount to misconduct and/or lack of competence.

 

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

Finding

Preliminary matters:

Service

1. The Panel was aware that written notice of these proceedings was posted by first class post to the Registrant at his registered address on 07 March 2016. Notice of these proceedings was also sent to the Registrant by email at his last known email address.  The Panel was shown documents which established both the fact of the service and the identity of the Registrant’s registered address. In these circumstances the Panel accepted that proper service of the notice had been effected.

Proceeding in the absence of the Registrant

2. Mr Dilaimi on behalf of the HCPC submitted that the Panel should consider the case in the absence of the Registrant.

3. The HCPC has read an email from the Registrant dated 07 March 2016 in which he stated that he did not intend to attend this hearing.

4. The Panel heard and accepted the advice of the Legal Assessor.

5. The Panel was aware that a decision to proceed in the absence of the Registrant was one to be taken with great caution.  However the Panel decided to proceed in the absence of the Registrant. The reasons are as follows;
• Service of the appropriate notice of this hearing has been properly effected.
• There is no reason to suppose that an adjournment would result in the future attendance of the Registrant and the Registrant has not applied for an adjournment. Further the Registrant by his email dated 07 March 2016 has stated that he does not intend to attend this hearing.
• There is a public interest in proceeding.
• These allegations relate to matters that occurred in 2013.
• There are two witnesses presently in attendance.
• In all the circumstances the absence of the Registrant should be treated as voluntary.

Application to amend the allegation

6. Mr Dilaimi on behalf of the HCPC applied to amend the particulars of the allegation so as to more accurately reflect the evidence. The details of the amendment is set out in bold above. Mr Dilaimi informed the Panel that the Registrant had been informed of the nature of the proposed amendment by way of the case summary of which he has been sent a copy. The Registrant has not objected to the proposed amendment. The Panel heard and accepted the advice of the legal assessor. The Panel having concluded that the amendment could be made without unfairness to the Registrant, allowed the amendment.
Procedure

7. The Panel decided to consider the facts, misconduct, and impairment as a single stage. Sanction, if appropriate, will be considered as a separate stage.

8. The Panel determined that, if appropriate, matters relating to the health of the Registrant would be heard in private. Otherwise this hearing would be held in public.

9. The Registrant has made admissions to all the facts that are set out in the particulars 1-4 of the allegation. He has also admitted that his fitness to practise is impaired by reason of lack of competence. He does not admit misconduct.

Background:

10. The Registrant commenced employment with Surrey and Borders Partnership NHS Foundation Trust (‘‘The Trust’’) in January 2011. Between January 2011 and February 2012 he worked as a Band 6 Occupational Therapist in the Surrey Health Community Mental Health Teams (Older People) CMHTOP. Between February 2012 and June 2014 he worked as a Band 5 Occupational Therapist in the Meadows 24/7 Assessment and Treatment Unit.

11. On 5 July 2013 the Registrant led a walk, involving five service users who were in-patients at the Meadows. The Registrant was accompanied on the walk by Occupational Therapist Technician, Witness 2. She was concerned that the Registrant had not adequately assessed the risks before taking the service users on a walk, and consequently had exposed them to risk. Witness 2 reported the walk to her manager, Sheila King, the following Wednesday.

12. An investigation was subsequently undertaken by Witness 1. At the conclusion of this investigation, the matter was referred to a disciplinary hearing. This hearing took place on 4 June 2014. The Registrant no longer works as an Occupational Therapist and has informed the HCPC in his letter dated 14 September 2015 that ‘he does not intend to work in this profession again.’
 Decision on Facts:

13. In coming to its decision on the facts the Panel had regard to all the evidence in the case and took account of the submissions on behalf of the HCPC as well as the written material put forward by the Registrant. The Panel heard and accepted the advice of the Legal Assessor. The Panel was aware that on matters of fact the burden of proof rested on the HCPC and that the standard of proof was the civil one, namely on the balance of probabilities.

14. The Panel heard oral evidence from Witness 3 and Witness 1 and received a written statement from Witness 2. The Panel also received and took account of written representations from the Registrant. The Panel also considered a substantial bundle of documents comprising 305 pages which was produced by the HCPC. This bundle contained contemporaneous documents relating to the allegations against the Registrant and documents which came into existence as part of the investigation. It included the record of an interview with the Registrant conducted by Witness 1 on 13 August 2013 and the two assessment reports which are referred to in particulars 3 and 4 of the allegation.

15. Witness 3 was the Clinical Supervisor of the Registrant from his transfer to the Meadows in February 2012 until his dismissal in June 2014. She gave evidence particularly about the reports prepared by the Registrant which were the subject of Particulars 3 and 4 of the allegation. She also gave evidence about her clinical supervision of the Registrant and about the capability procedure to which he was subject and which was still ongoing at the time of his dismissal on the basis of his conduct which is the subject of Particulars 1 and 2 of the Allegation. The Panel considered that Witness 3’s evidence was fair and balanced with appropriate qualification where her understanding of events was unclear. In the Panel’s view her evidence was credible and reliable.

16. Witness 1 was appointed by the Trust to investigate the matters referred to in Particulars 1 and 2 of the allegation. She gave evidence of the results of her investigation which included notes of her interviews with the Registrant, Witness 2 and other staff who might be regarded as having information relevant to the matter in question. She had also examined the Rio Record system in relation to the Service Users concerned. She did not interview any of the Service Users (A to E) who had participated in the walk. Despite enquiry she was unable to ascertain the weather or temperature at the time of the walk beyond asserting that a ‘severe weather warning’ had been issued by the Trust for the week in question. A map of the route of the walk was provided but without a scale the exact distance could not be ascertained. The Panel inferred from all the evidence that the length of the walk was probably something just over a mile. The Panel considered that Witness1’s evidence was fair and balanced. She had not previously conducted an enquiry of this nature and she followed the advice given by the Trust’s HR’s department. In the Panel’s view her evidence was credible and reliable.

17. The Panel accepted the statement of Witness 2 but as she did not give oral evidence the Panel was not able to test her evidence and thus could give it only limited weight. In that respect the Panel accepted her factual assertions where they were not disputed by the Registrant or where they were corroborated by other reliable evidence such as the Service Users’ Records. The Panel did not accept her opinions on the difficulty presented by the terrain of the walk as those views did not appear to be corroborated by the photographs seen by the Panel and did not appear to be supported by the fact that all the Service Users appear to have successfully completed the walk without identifiable detriment.

18. The Panel noted and took account of the comprehensive admissions of the Registrant and considered that they provided a useful and broad context within which to place the facts presented by the witnesses on behalf of the HCPC. It appeared to the Panel that the Registrant openly acknowledged his shortcomings and offered genuine reasons for why he had behaved as he had. The Panel considered that his evidence in this regard was reliable but noted that, rather than justify his conduct, it raised questions as to his professional competence.

Particular 1
     1. On 5 July 2013 you did not conduct risk assessments prior to taking 5 vulnerable patients who use services (A,B,C,D and E) on a walk

19. It was clear from the evidence that the Registrant had accessed each of Service Users A to E’s Rio Records during the morning before the walk in question. It is equally clear that his consideration or interpretation of the information contained therein was inadequate. In particular, Service User C had undergone Electro Convulsive Therapy (ECT) that morning after a general anesthetic. She would have had limited nutrition since the night before and would not have been expected to be fit to participate in the walk. It is fortunate and to her credit that she completed it successfully. Furthermore, Service User A was recorded as being capable of walks of no more than ten minutes. This walk was at least twice that length and it was fortuitous that he completed it without significant difficulty. There was evidence that Service User’s B, D and E were potentially at risk because:
• Service User B had dementia and there were concerns in relation to her  mental health as she had severe short term memory problems;
• Service User D had a history of wandering and of getting lost and suffered from significant memory problems;
• Service User E had an increased risk of falling due to weakness on her feet. Moreover Service User E had an exposed mole on her back which made her vulnerable to skin damage.

20. However, the Panel did not consider that these vulnerabilities meant that these Service Users should not have participated in the walk but the Panel has no confidence that this was a considered judgement by the Registrant, rather it was a fortuitous coincidence.

21. The route of the proposed walk appears to have been experienced by the Registrant some two weeks prior to the incident in question but does not appear to have been properly assessed in relation to its suitability for a range of Service Users. It was unfortunate that a change had occurred which required a deviation from what was proposed, but overall the Panel did not consider that there was evidence that the route followed was inappropriate for most of the Service Users. Furthermore the presence of two members of staff with mobile phones could mitigate any emergency that arose. Nevertheless, it was obvious from the evidence and accepted by the Registrant that there had been no proper risk assessment.The Panel accepted, however, that the Registrant’s intentions were entirely positive and the walk was probably of benefit to all the Service Users, even those who on a proper risk assessment would not have been allowed to participate.

22. On that basis the Panel finds Particular 1 proved.

Particular 2
   2. Your actions in 1 above places service users at risk

23.In the absence of a proper risk assessment it is the Panel’s view that whether or not any Service User was placed at risk of harm was a matter of chance.

24.In the light of the information contained in the Rio Records of Service User’s A to E it appears to the Panel that there was a real risk of harm to Service Users A and C the details of which are noted above in relation to Particular 1. The risks in relation to Service Users B, D and E are largely theoretical and, although it may have been prudent to take some bottled water the limited scope of the expedition did not raise a real risk in relation to these Service Users.

25. To that extent the Panel finds Particular 2 proved.

Particular 3

3. On or around 24 May 2013, following a home assessment with Service User F you did not complete an adequate report in that:
(a) There was no background history recorded;
(b) Information relating to agencies involved with the service user was not recorded;
(c) Statements made in the report were contradictory;
(d) The risks recorded did not adequately reflect the service user’s situation;
(e) An assessment of the service user’s capacity was not recorded;
(f) Referral and/or liaison with other agencies were not recorded.

26. An examination by the Panel of the Home Assessment in relation to Service User F showed that it was clearly deficient in that there was no background history recorded, information relating to agencies previously involved with the Service User was not recorded, the risks identified fell woefully short of those which should have been identified, an assessment of the Service Users mental capacity was not included, and the need to refer to or liaise with was not identified or recorded. The Panel did not consider that any statements made in the report were contradictory as it believed that upon careful reading they could all be regarded as factually justified. For example, there were aspects of the home environment which could be described as ‘squalid,’ but there were aspects which were not. The inadequacy of the report was in relation to the very significant amount of important material which it did not contain and its real potential to put Service User F at serious risk of harm.

27. The Panel had close regard to the written submissions of the Registrant with reference to this report and noted that he admitted the facts alleged. Of particular concern was his assertion that ‘‘I feel the ward were anxious to have this Service User assessed quickly to facilitate a discharge as possible [sic] and that my willingness to help was being exploited by the ward.’’ The Panel interpreted this submission to indicate a significant failure on the part of the Registrant to identify the very serious risks to the Service User of returning to live at home, so as to facilitate a discharge for the convenience of the ward.
Accordingly and to this extent the Panel found Particular 3 proved as far as (a), (b), (d), (e) and (f) were concerned but not in relation to sub particular (c).

Particular 4

4. On or around 10 July, 2013 you did not complete an adequate washing and dressing assessment report in respect of Service User G in that:
(a) The report was completed on the incorrect template document;
(b) There was no clinical formulation recorded;
(c) The risks recorded were inadequate;
(d) There were no recommendations recorded.

28. The report referred to in Particular 4 may have resulted from an instruction to complete a washing and dressing assessment but it clearly did not properly address either of those issues. Indeed, it was not apparent what the report did address as, although it was titled ‘Home Functional Assessment’ a careful reading revealed that it resulted almost exclusively from a discussion about the Service User’s home which took place between the Registrant and the Service User in the Ward’s garden. There were references to the tendency of the Service User to confabulate and there were examples of what he said being clearly delusionary, but there were important sections in which the unsubstantiated assertions by the Service User appeared to be accepted as fact. The report made no real sense and was liable to be misinterpreted so as to imply that the Service User was much more capable of looking after himself than was really the case, thus putting him at serious risk.

29. The Panel noted the Registrant’s admission of this factual particular and took the view that, however the report was to be described, it was clearly on the wrong template, there was no record of any clinical formulation, the risks recorded were woefully inadequate and there was no recommendation recorded. Accordingly, the Panel found particular 4 proved in its entirety.

Decision on grounds:

30. The Panel next considered the grounds and although it noted the Registrant’s admissions of lack of competence, the Panel exercised its own independent judgement as to whether any or all of the factual particulars proved amounted to misconduct and/or lack of competence.

31. In making its decision on the grounds the Panel took into account the submissions made on behalf of the HCPC and those made by the Registrant. It heard and accepted the advice of the Legal Assessor.

32. The Panel first considered whether the proven particulars amounted to misconduct and in that regard looked first at Particulars 1 and 2, the walk which had put two of the Service Users at risk of harm. There was no suggestion that the Registrant’s motives for acting as he did were other than laudable; he wanted the Service Users to get the benefit of a pleasant walk in the sun and lift their spirits. However, the execution of his plan was flawed in that he did not adequately assess the risks involved, nor prepare for them. To that extent his conduct fell short of what would have been proper in the circumstances. However, the Panel did not consider that it fell so far short that it amounted to misconduct. The Panel rather took the view that in isolation it was essentially a negligent error of judgement which was neither ‘particularly grave’ nor would it be regarded as ‘deplorable’ by fellow practitioners.

33. Having considered the question of whether Particulars 1 and 2 amounted to misconduct the Panel conducted the same exercise in relation to Particulars 3 and 4. In doing so it noted particularly that both these incidents occurred during the currency of a capability procedure which appears to have arisen from similar shortcomings. The Panel also paid particular heed to the submission by the Registrant who, in admitting a lack of competence, stated, ‘‘I have tried hard to do my job to the best of my abilities. I have put the needs of the Service Users I have worked with above all else….With reference to the additional particulars in paragraphs 3 and 4 of the allegation I do not believe there are grounds for misconduct as I acted with the best of intentions and to the best of my abilities. The allegations are correct to the best of my knowledge, but I believe this was due to a lack of competence rather than misconduct.’’ The Panel accepted that submission and took the view that none of the particulars amount to misconduct.

34. Having done so the Panel then considered whether any of the particulars amounted to a lack of competence and came to the conclusion that they all both individually and cumulatively amounted to a lack of competence. It is the view of the Panel that the facts proved show a consistent theme of an inability to make reliable and comprehensive assessments of risk or to articulate and address even those risks which are identified. This inability is clearly demonstrated by each of the particulars found proved and involves breaches of the following Standards of Proficiency for Occupational Therapists:

4.1 be able to assess a professional situation, determine the nature and severity of the problem, and call upon the required knowledge and experience to deal with the problem

4.2 be able to make reasoned decisions to initiate, continue, modify or cease treatment, or the use of techniques or procedures, and record the decisions and reasoning appropriately

4.4 recognise that they are personally responsible for and must be able to justify their decisions

8.1 be able to demonstrate effective and appropriate verbal and non verbal skills in communicating information, advice, instruction and professional opinion to Service Users, carers, colleagues and others

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines

14.3 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment

14.4 be able to gather and use appropriate information

14.11 be able to analyse and critically evaluate the information collected

14.13 be able to use research, reasoning and problem solving skills to determine appropriate actions

15.3 be able to work safely, including being able to select appropriate hazard control and risk management, reduction or elimination techniques in a safe manner, and in accordance with health and safety legislation

15.5 be able to establish safe environments for practice, which minimize risks to Service Users, those treating them, and others, including the use of hazard control and particularly infection control

Decision on impairment:

35. Having found that the proven factual particulars amount to a lack of competence, the Panel next considered whether the Registrant’s fitness to practice is currently impaired. In doing so it had regard to all the circumstances of the case and the submissions made on behalf of the HCPC and by the Registrant on his own behalf. It heard and accepted the advice of the Legal Assessor.

36. The Panel noted that at the time of the incidents in question, there had been a recognition of a number of performance issues with the Registrant and he had been put on a Capability Procedure where he was being supported and monitored. Furthermore, there was an identification of a condition suffered by the Registrant which required some workplace adjustments to do his work properly. However, there was no evidence that it was the lack of these adjustments which was causing the Registrant to be unable reliably to identify, assess and address risks to Service Users. Moreover, the capability process was not fully followed through because it was cut short by a disciplinary process based on the Registrant’s conduct in arranging the walk which was the subject of Particulars 1 and 2.

37. The evidence of Witness 3 was that although, by the time he was dismissed, the Registrant had made some marginal improvement in his report writing, there was no reason to believe he had addressed his weaknesses in terms of risk assessment.

38. The evidence from the Registrant was to the effect that since the Trust had terminated his contract he had not worked as an Occupational Therapist and did not intend to do so in the future. The Registrant demonstrated some insight in acknowledging his shortcomings but that insight appeared to be limited in that, whilst acknowledging his failings in report writing, he does not seem to recognise his real weaknesses in risk assessment and management.

39. Accordingly, there is no evidence that the Registrant has effectively addressed his shortcomings and it appears to the Panel that there is a real risk that he would repeat his errors and put Service Users at risk in the future. On that basis the Registrant’s fitness to practise is impaired in terms of a risk to public safety.

40. Furthermore, taking account of the wider public interest it is the view of the Panel that in the circumstances of this case a finding of no current impairment would fail to declare and uphold proper standards and would undermine public confidence in the profession and the HCPC as the Regulator.

Decision on Sanction:

41. In coming to its decision on sanction, the Panel has taken account of all the circumstances of the case and the submissions made on behalf of the HCPC. It has noted the information provided by the Registrant as to his intentions for the future. The Panel has had regard to the HCPC Indicative Sanctions Policy and has heard and accepted the advice of the Legal Assessor.

42. The Panel notes that in imposing a sanction, it must act proportionately and properly balance the interests of the Registrant against the public interest. It must impose a sanction which is no more restrictive than that which is necessary to address the risk to public safety and satisfy the wider public interest. A sanction is not intended to be punitive but it may have a punitive effect.

43. The Panel identified the following aggravating and mitigating features of this case which it considered appropriate to take into account when determining the sanction:

Aggravating
• more than one deficit in the Registrant’s competence ie. risk assessment, risk management and report writing;
• there was a real risk of harm to Service Users;
• the Registrant has shown limited insight and no effective remediation.

Mitigating
• the Registrant appears at all times to have had the best interests of Service Users at heart;
• there are no previous regulatory issues;
• the Registrant has demonstrated some insight through his admissions;
• the Registrant’s health condition may have had a limited impact on his shortcomings in report writing.

44. Bearing all these matters in mind the Panel considered the available sanctions in ascending order starting with the least restrictive, which is to take no action. The Panel did not consider this would be appropriate as it would not address the risk of repetition identified by the Panel or satisfy the wider public interest. The Panel also rejected the option of a Caution Order for the same reasons.

45. The Panel next considered a Conditions of Practice Order but in the light of the Registrant’s declared intention not to work again as an Occupational Therapist and his current lack of full insight, the Panel could not formulate any sensible or workable conditions which might address the deficits in his practice.

46. The Panel next considered the imposition of a Suspension Order and determined that a Suspension Order for 12 months was the necessary and proportionate sanction in this case. Such an Order will provide the necessary protection for the public and will meet the wider public interest in terms of declaring and upholding proper standards as well as maintaining public confidence in the profession of Occupational Therapy. A temporary removal from the Register is necessary to ensure that the Registrant cannot resume his practice until it is safe for him to do so. It is the Panel’s view that a period of 12 months will give the Registrant the maximum time to reflect on his shortcomings and to make a decision on whether he wants to return to the profession of Occupational Therapy, and if so, how. Should the Registrant wish to return to practice he could, if appropriate, request an early review of his suspension.

47. As the Panel made no finding of misconduct the sanction of Striking Off is not available at this stage.

48. This Suspension will be reviewed before it expires and if the Registrant wishes to return to practice it may be of assistance to the reviewing panel if he were able to attend the review hearing and provide:
• evidence of the development of full insight into his shortcomings;
• a plan of how he would hope to remediate the deficiencies in his practice;
• evidence of how he has been able to maintain his professional knowledge;
• references and testimonials from any source but particularly if they could shed light on his ability to identify and manage risks.

Order

ORDER: That the Registrar is directed to suspend the registration of Mr Colin G Towner for a period of 12 months from the date this order comes into effect.

This order will be reviewed again before its expiry on 5 July 2017.

Notes

This is a Conduct and Competence Committee Final Hearing which took place at HCPC, London on Monday 06 June 2016 to Tuesday 07 June 2016 at 10:00am.

Hearing History

History of Hearings for Colin G Towner

Date Panel Hearing type Outcomes / Status
07/12/2018 Conduct and Competence Committee Review Hearing Struck off
31/05/2018 Conduct and Competence Committee Review Hearing Suspended
08/06/2017 Conduct and Competence Committee Review Hearing Suspended
06/06/2016 Conduct and Competence Committee Final Hearing Suspended