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During the course of your employment as a Practitioner Psychologist with North East London NHS Foundation Trust:
1. On 23 April 2010, you wrote a report on Patient B for Social Services Child Families Case Conference, and
a. you did not ensure a formal risk assessment of the patient was undertaken
b. you did not analyse risk-related matters which came to light during your session with patient B;
c. the report was poorly constructed and lacked structure.
2. The matters described in paragraph 1 constitute misconduct and/or lack of competence
3. By reason of that misconduct and/or lack of competence, your fitness to practise is impaired.
1. In her submissions, Ms Berridge on behalf of the Council, addressed three matters. Firstly, the overall function of the Panel; secondly, discontinuance; thirdly, the process that the Panel could properly adopt. She set out the framework for proceedings, and made clear that the decisions were for the independent judgment of the Panel and nothing she said sought to absolve them of that responsibility.
2. In providing the background to the current hearing, Ms Berridge explained that the joint expert report dated 23 November 2016, was a result of an intervention by the Panel Chair. The use of such a joint expert report was not common practice with this regulator but is permitted and has been helpful. It is of direct relevance to the application to discontinue the case in part.
3. Ms Berridge said that the application on behalf of the Council, to discontinue particulars 1a,1b,1c and 2c of the Allegation is based on a Council decision arrived at in light of the joint expert report. It was considered not appropriate to continue with prosecution of those matters because there was no realistic prospect of proving them. She said that the Panel would need to consider whether this was appropriate and commended the Practice Note on Discontinuance to it.
4. As to the process which the Panel should follow, Ms Berridge invited the Panel to consider a Statement of Agreed Facts and Grounds (SAFG) as representing the first stage of the fitness to practise hearing. She submitted that the document reflected the basis of the case that the HCPC brought. It has been agreed between the parties. When considering the totality and drilling down into the gravamen of this case, the document was designed to address these matters.
5. Ms Berridge said that this was a joint application to assist with expeditious disposal of this case. Article 32(3) of the Health and Social Work Professions Order 2001, (as amended) (HSCO) requires that each stage of fitness to practise proceedings is dealt with expeditiously.
6. Ms Berridge said that the position that parties find themselves in, is that the admissions by Mr Ma, means that it is no longer necessary to call evidence or test it by cross examination. The document could be used as a resolution of part one of the proceedings, dealing with both facts and grounds. The Panel was asked to consider this document, along with the supporting materials, cross referencing agreed documents, the papers, and taking into account the joint expert report. The Panel was told this was an acceptable way to proceed, permitted within rule 10 of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) 2003. It was effectively the same process as if the Panel were to hear live evidence.
7. Mr Lazarus on behalf of the Registrant, agreed and adopted what Ms Berridge had said. He said that consideration of individual statements and exhibits might appear to reveal factual disputes, but there are no material factual disputes. The Panel was entitled to treat that the SAFG as evidence that the Registrant had given.
8. Mr Lazarus addressed one feature of the relevant statutory ground and referred to the fact that the grounds of misconduct and/or lack of competence had been pleaded in the particulars of the Allegation. He said while a lack of competence is not something that is agreed within the SAFG, the Panel may want to consider that in the case of Calhaem v GMC, both misconduct and lack of competence normally arise only where there is a fair sample of the practitioner’s work, and he asked whether this can be said to be the case here.
9. Mr Lazarus submitted that in essence what has been agreed attempts to tackle the real gravity of Mr Ma’s conduct. Mr Lazarus invited the Panel to give important consideration to both applications and added that while the Registrant is not obliged to give evidence, that it is Mr Ma’s intention to do so. Finally, if the Panel were not to agree to the applications that he would make another submission and invite the Panel to recuse themselves, in light of the admissions and concessions that the agreed document contained.
10. The Panel read the Practice Note on Discontinuance and accepted the advice of the Legal Assessor. It considered that the agreed document was offered in lieu of a full opening of the case but accurately reflected the facts and grounds that it had to consider. It had three options:
• To accept the document and find facts and grounds proved;
• To reject the document and not find facts and grounds proved;
• If there were isolated issues on which clarity was required before a final decision could be made, to point this out to see if the matter could be resolved.
11. It was agreed between Ms Berridge, Mr Lazarus and the Legal Assessor that the Panel could in coming to a conclusion:
• Accept that part of the proceedings be discontinued, or not, and then go onto consider the issue of the SAFG;
• Accept that part of the proceedings be discontinued, and find that once that had occurred, find the remainder of the case is not well founded;
• Accept that that part of the Allegation be discontinued, but not accept the SAFG as standing in lieu of the first part of fitness to practise proceedings.
Decision on discontinuance
12. The Panel accepted the legal advice of the Legal Assessor and read the relevant Practice Note on Discontinuance. The Panel is aware that the main function of the Council as set out in Article 4, HSCO, is to exercise safeguards for people needing or using the services of registrants. The function of public protection was borne in mind by the Panel when it considered whether this was any “under prosecution” by the Council, having received submissions from Ms Berridge in this regard.
13. The Panel considered which aspects of the allegation should be proceeded with and whether it should partly discontinue matters as invited to. A proportionate approach was adopted in considering the merits of proceeding with particulars 1(a), 1(b), 1(c) and 2(c) of the Allegation. The Panel considered that these particulars of the Allegation were not sustainable given the information it had been provided with.
14. In relation to 1(a), the Panel noted that there was evidence that Mr Ma had communicated with Dr Nandy, and identified and notified him of risks in relation to Patient A.
15. In relation to 1(b), the Panel recognised that there was evidence that Mr Ma sought supervision.
16. There was evidence of supervision occurring in early March, mid-April and four or five sessions taking place between these dates. Further, there was evidence that Mr Ma did attempt to raise concerns by email with his supervisor. All this evidence suggests that some supervision did occur, and attempts were positively made by Mr Ma to inform his supervisor of some specific concerns.
17. In relation to 1(c), the Panel had seen evidence that a formal risk assessment had occurred. The psychiatric team initially undertook this. Mr Ma updated this by asking questions of Patient A in light of his risk history. Patient A was referred to Mr Ma for a psychological intervention and although he would have needed to ensure risk elements were noted, he would not necessarily have needed to undertake an additional formal risk assessment.
18. In relation to 2(c), the Panel saw evidence that Mr Ma sent a copy of his report to his line manager Ms Nolan before it was filed. Although Mr Ma had no clinical supervisor at this time, Ms Nolan, had a managerial role and was senior to Mr Ma, had sight of this document before it was filed. Mr Ma says in his written statement that Ms Nolan gave permission for the report to be delivered to social services.
19. In light of the available evidence, and having made due inquiry, the Panel was satisfied that discontinuance does not represent ‘under-prosecution’ on the part of the HCPC.
20. The Panel having considered the joint expert statement which made clear what was acceptable conduct for a Practitioner Psychologist in the position of Mr Ma, is satisfied that:
• the HCPC has proper grounds for discontinuing part of the proceedings. The joint expert report is relied upon by the HCPC and provides an objectively justified explanation for the discontinuance application.
• it was fair to the Registrant to discontinue particulars 1(a), 1(b), 1(c), and 2(c) of the Allegation.
21. Accordingly, the application for discontinuance in part was granted.
Decision on agreed facts
22. The Panel carefully considered the SAFG, which was signed by Ms Berridge and Mr Ma. The Panel having been invited to accept this statement in lieu of an oral opening and hearing from Council witnesses, gave thought as to whether this was an expeditious approach for the Panel to take. While the Panel accepted this statement represented a pragmatic distillation of facts that would take several witnesses a considerable time to outline, it recognised that this did not absolve it of its responsibilities to use its independent judgment in deciding which, if any, facts it found proved. In doing this, the Panel also took account of the documentary evidence before it, which included a number of witness statements.
23. The Panel considered each of the particulars of the allegation in turn.
24. In relation to particular 2a, which covers ensuring a formal risk assessment was undertaken. In the SAFG Mr Ma admits that he undertook no formal risk assessment of Patient B. An integral part of preparing a psychological report about Patient B would require a formal risk assessment. Therefore Mr Ma should have undertaken one or ensured that one had been done. In paragraph 32 of the SAFG Mr Ma admits that “without such a formal assessment the conclusion in the final paragraph [of his report] cannot properly be advanced”. Therefore it is clear that he did not ensure that a formal risk assessment was undertaken on Patient B.
25. Mr Ma said in his witness statement that Patient B’s social worker had reassured him that such a risk assessment was not for him to do and that Children and Families Services would do it. This expectation was apparently not shared with the rest of the multi-disciplinary team.
26. It is clear from Witness 1’s statement that Laura Capellino, Head of Redbridge Services read the report on Patient B on RiO (a software product used by the Trust to record information for all service users), but noticed that a risk assessment had not been done, nor a note made to update any risk on RiO. The Panel took this as a clear inference that the report should include a formal risk assessment.
27. Allegation 2b that the Registrant did not analyse risk-related matters which came to light with patient B, is supported by the fact that no relevant entries existed on RiO. Further, the joint expert report makes clear that what the Registrant did produce is not a psychology report but a clinical letter sharing his view. Mr Ma was found not to make clear the basis of his views, nor reference or explore Patient B’s history. Dr Ruthenberg had said that, “Mr Ma had not adjusted from a therapeutic model into an objective clinical assessment model, and that there is no hint of objective clinical/professional analysis.” The other expert, Professor Bor said, “It is not apparent to what extent the information was tested in order to support the conclusions.” Dr Ruthenberg said that there was, “no attempt to explore highly pertinent and risk laden facts mentioned by the client.”
28. In terms of particular 2(d) that the Registrant’s work was poorly constructed and lacked structure, the Panel considered the document itself and what others had to say about it. Mr Ma himself admits that the heading he gave the document in itself made it misleading, that he did not make clear which other documents had been relied upon, he gave conclusions that he was not qualified to give, and in circumstances that were not justified. Further, he said in the SAFG that nothing in the body of the document can actually, or even purports to, justify that conclusion.
29. The Panel looked at the document Mr Ma had provided and considered the joint Expert Report/Statement. The Panel found that the document was objectively not well constructed. It did not set out what the purpose of the document was and how it was intended to be used. It reached a conclusion that the Registrant was not entitled to find, on the basis of the work he had done, without carrying out an assessment, or having the appropriate experience and knowledge to do so. It was not clear how its conclusion had been reached or the reliance that was intended to be placed upon it.
30. The Panel accepted the statement of agreed facts and grounds and considering the standard and burden of proof, found these matters proved.
31. The Panel concluded the facts found proved amount to misconduct. This was not simply a single failing of not giving a document the correct title, but an instance of acting well below the necessary standards that applied to a Practitioner Psychologist. He gave a misleading impression based on his misplaced desire to help Patient B, without any proper regard to the consequences for Patient B or her children. Ultimately, such consequences would not have been in the best interests of anyone.
32. The Panel finds it to be a serious matter that the Registrant was acting outside his professional expertise and his skills and knowledge base. Accordingly, the Panel finds the facts found proved, to amount to misconduct. The Panel notes that the expert witnesses are agreed that “nothing other than inexperience, naivety and wishing to “help”” underlay Mr Ma’s intention in undertaking the assessment. The Panel find however that Mr Ma at the relevant time was a mature and seasoned professional.
Decision on impairment
33. Mr Ma gave oral evidence under oath. The Panel found him to be a credible witness, who appeared to do his best to answer the questions asked of him. He indicated that his intention in creating the document was, “to give an overall history…actually evaluate eight to ten relevant documents containing history, and identify discrepancies.” He said that he called his document a “Psychology Report,” by mistake. He admitted having “been told before not to use that title because of the connotation of what it means,” but still used the title because, it was what he had, “always done” and that he, “had not realised that it was not appropriate.”
34. He gave evidence that within the final paragraph of his report, the following reference: “From her presentation, it was my impression that Patient B does not pose a risk in the care of her children,” was likely to reinforce the impression that the document was indeed a psychological report. However, he said that: “At that point, I was not mindful of the impact that it has on the general public. I was conscientious about, overdrawn to client, and to work through, and I do not on reflection, no right, or excuse to have it in there.”
35. His evidence was that having reflected on the matter he had come to appreciate that “other people would have perceived that I had done a full risk assessment of the client,” but that this was not apparent to him, at the time. He made reference to “at that time, putting wrong hat on,” but made it clear to the Panel that he had not done a full risk assessment. He said he was conscious now of what could have happened if someone had been led to believe that he had done a risk assessment, but that at the time he was conscious of a “duty to support Patient B” and was concerned that “nobody was representing her”.
36. He now appreciated that in fact his desire to support Patient B could backfire, because, “she might use it against others and cause conflict with others in team,” and agreed that it could also have the impact to, “cause harm to children potentially,” although he added that, “Safeguarding was already in place”. In any case, not my decision. At the time, I thought those issues in place. On reflection, it was not the thing to do.” He accepted that there might have been harm caused by his document as it would have allowed Patient B to, “carry on doing what she was doing,” and admitted that he was not qualified to do a risk assessment of her parenting skills.
37. He agreed that as a Practitioner Psychologist, he is a member of a profession, and has a responsibility to uphold the reputation of that profession, to justify the trust that the public are entitled to have in it. He admitted to having clearly breached professional guidelines, brought the profession into disrepute, caused harm to himself and others. He said that in future he would be, “more aware of policies, and regulations. I would endeavour to do more courses, especially in safeguarding children, writing of reports.” He accepted that he had operated well below the standards expected of him, in acting outside the limits of his knowledge and expertise and failing to appropriately manage risk. He said that he needed to do more training to be a safe, autonomous practitioner, and that he would need to do more training before he would feel fit to practise safely.
Submissions on Impairment
38. The Panel heard submissions from Ms Berridge and Mr Lazarus, considered the Practice Note on Finding that Fitness to Practise is Impaired, and accepted advice from the Legal Assessor.
39. Ms Berridge submitted that the Panel should consider the Practice Note in this area, which set out all the relevant factors and took the Panel through relevant case law. In considering impairment, she invited the Panel to consider whether the conduct was remediable, has been remedied, and/or is likely to be repeated. She invited the Panel to look forward not back and consider the seriousness of the Registrant’s actions. She submitted that the Council’s case was well made out and that the Registrant is impaired.
40. Ms Berridge referred to the case of Grant in asking the Panel to consider not only whether there was a risk to the public but whether confidence in the profession of Practitioner Psychologists would be damaged. She submitted that the joint expert report made clear that Mr Ma’s unprofessional failure was risk laden and that the Registrant should have identified that he was not qualified to undertake a professional independent assessment of Patient B. She invited the Panel to stand back and assess the totality of the evidence.
41. Ms Berridge submitted that in respect of conduct of the Registrant’s conduct regarding Patient B, Mr Ma provided a document entitled “Psychological Report” that would be relied upon by Social Services at a team meeting he knew would take place. He provided a definitive opinion. It was for the Panel to consider the degree of insight the Registrant has into the seriousness of his actions. There are at least two breaches of HCPC’s professional Standards of Conduct of Performance and Ethics. The Registrant by his own admission says he is not currently fit to practise, without first taking more voluntary work experience. Whether he poses a risk to the public will need to be considered.
42. Ms Berridge concluded her submissions by again saying that having regard to the appropriate mechanism to safeguard against future difficulties, the Panel should consider whether the conduct is remediable, had been remedied and/or was likely to be repeated. In addition, she invited the Panel to consider the extent to which the Registrant had fallen short in exercising his professional judgment. She submitted that the public interest would be damaged if impairment is not found.
43. Mr Lazarus adopted the submissions on case law that Ms Berridge had made and also commended the relevant Practice Note to the Panel. He too referred to the cases of Cohen and Grant. He invited the Panel to find that the current case amounts to a single and isolated error on the part of Mr Ma, and not to find that his fitness to Practise is impaired.
44. Mr Lazarus submitted that the Registrant’s conduct is remediable, and is highly unlikely to be repeated. He suggested that in asking how the Panel can be confident that an error of this kind will not be repeated in the future, it should consider how this error came about. In his submission, he said that central to the Panel’s determination was the fact that the Registrant was ‘over-involved’ in the plight of Patient B and focused on addressing the client’s concerns. Mr Ma has made these admissions. They demonstrate a considerable degree of insight. It was over-involvement that led to this unfortunate event and that is what this case concerns.
45. Mr Lazarus submitted that the Panel may ask itself, “How can you be confident that [an] error of this kind will not be repeated in the future?” If the Panel are concerned that Mr Ma was wrapped up in the patient, and his judgment became clouded, they should take comfort from his assurance that he is mindful of these issues now and that he is going to think twice about everything he does. There have been over six years between this event and the final hearing which has provided ample opportunity for reflection.
46. Mr Lazarus submitted that in making some reference to psychology, he stood to be corrected by the professional registrant member of the Panel but that supervision within psychology, is unique to this discipline in having an almost psycho-therapeutic element. The concept of transference and counter-transference are issues that can be identified if a supervisory process is in place to deal with these. Mr Lazarus reported that Mr Ma had said that in a situation, where he is not having good quality supervision, he would seek out someone else to supervise him.
47. Mr Lazarus said that Mr Ma had demonstrated both insight and a commitment to improve. No complaint has been made, and the HCPC was only aware of the matter because Mr Ma self-reported it. In referring to the history and chronology of the case, he did concede that Mr Ma did not put in a substantive response for two years, but indicated that he did not have the benefit of legal representation at that time.
48. Mr Lazarus submitted that this is a case of misconduct where misconduct has been admitted. There are testimonials that explicitly address ethical issues and indicate no concerns.
49. Furthermore, others with whom Mr Ma works reference his, “professional foresight” and say that he is the “first to identify professional risk.” Accordingly, Mr Lazarus submitted that as regards the personal component, the Registrant’s fitness to practise is not impaired.
50. In addressing the Panel on the public component, Mr Lazarus said that he did not wish to understate the gravity of the case. He said that this case was at the boundaries of the “Grant threshold”. He submitted that mitigating factors pushed Mr Ma’s conduct below that threshold and it was not necessary to find impairment on the public component. He submitted that this is a single and isolated error. Although there was the potential for harm, there was no substantive harm. The Registrant’s behaviour was misguided but there was no improper motive. Mr Ma was simply drawn to assist his client, at a time when he himself was under severe stress both in his professional and personal life.
51. Mr Lazarus submitted that the question is: “what would an impartial informed member of public think of this case?”. They would find that this was an exceptional case and that they are more likely to think, given the overall history of these proceedings, that a finding of impairment would have an unnecessarily disproportionate effect on the Registrant.
52. In considering impairment, the Panel has taken into account that the purpose of these procedures is not to punish the Registrant for past misdoing but to protect the public against the acts and omissions of those who are not fit to practise. The Panel is of the view that the Registrant did not act in a way that was consistent with his professional obligations within a multi-disciplinary team.
53. The Registrant has provided the Panel with evidence that he has developed some insight into his behaviour. Some former colleagues and those he currently works with on a voluntary basis, have provided testimonials as to the positive attributes of his character but by and large that they do not address the core issues in this case. The Panel accepts that the Registrant has acknowledged that his behaviour fell below acceptable standards of behaviour for Registrant Practitioner Psychologists. The Panel noted that he shows some remorse but the Panel is concerned that the original focus seemed to have been on the failings of his colleagues rather than on his own failings, and that some elements of this mind-set remain today.
54. The Panel has had regard to the combination of events that occurred in the Registrant’s professional and personal life at the time, which may have led to him behaving in the way he did. These include being suspended from work, having a poor relationship with his former supervisor and parental illness. The Panel considers that whilst under emotional pressure he behaved in a way that was not in accordance with his role, or experience. This had the potential to cause detriment to the effectiveness of the wider team in which he operated and potentially cause harm to Patient B, her children and the reputation of Practitioner Psychologists and the other professions represented in the multi-disciplinary team.
55. The failings were material at the time when the Registrant was a Practitioner Psychologist. The Panel noted that the Registrant demonstrates insight in accepting that, at an emotionally traumatic time, he did not act objectively, nor address his mind to the need to do so. The Registrant’s actions were overly sympathetic to his patient and failed to analyse the potential risk to her children. He provided a document entitled “psychological report” that was misleading and not fit for purpose. It contained opinions that were not justified, were not appropriate to include and were outside his professional expertise.
56. The Panel finds, as the Registrant accepts, that there would be professional expectations of a document entitled “Psychology Report”. The Registrant would have known this or should have done. He said he simply failed to address his mind to the professional expectations of his document at the time and was only concerned about Patient B. His desire to assist Patient B was misguided, and could have caused more harm than good; it had the potential to negatively impact the wider team, which is only as strong, as its weakest link.
57. The Panel is concerned that he failed to consider the obligation he had to his professional responsibilities.
58. While the Registrant’s failings came to light as a result of his self-reporting to the HCPC, this was not in the context of the Registrant’s own behaviour, but rather within a context of his feeling bullied by those he worked with and seeking to have the intervention of the HCPC.
59. The Panel is of the view that the behaviour is remediable but cannot say that it is fully remedied in light of the relatively late acknowledgement of wrongdoing by the Registrant and the limited ways in which he has sought to remedy this behaviour. The Registrant had recognised that his report writing was below par but not addressed this deficiency, or sought to increase his skill level in this regard. He also recognised that he became overly-involved in focusing simply on Patient B’s issues to the exclusion of other relevant criteria, but has not attended courses on maintaining professional boundaries and self-care.
60. While the Registrant has undertaken a number of short courses as Continuing Professional Development, these appear to have been chosen largely at random. The Panel noted that he had attended a few short seminars which may help to address some of the underlying causes of his failings. He has not been strategic in identifying his deficiencies and ways to address these. There are no examples that demonstrate learning about assessment and formulation, the writing up of these assessments, or even of how the learning that has occurred has been put into practice. While he appears to have reflected on how he might have dealt differently with Patient B, it was not apparent that he had learnt from that in terms of applying that learning to other situations.
61. By the Registrant’s own admissions, he did not consider himself to be able to practise safely and autonomously without further training and supervision. He admitted to not being overly familiar with the standards that applied to his practice, and was unable to articulate a convincing plan to reassure the Panel that his self-care was adequate, or he had adopted adequate strategies to address his professional obligations at times of emotional stress.
62. The Panel agreed that Mr Ma needs to reflect further on the breadth of the risk he may pose to patients, other professionals in a multi-disciplinary team, or a patient’s extended family. By participating in a multi-disciplinary team and not performing to the necessary standards, he would weaken the protection of the whole system, and creates a risk for patients that it is his responsibility to help protect.
63. The Registrant now accepts, in how he responded to questions from Ms Berridge and the Panel, that the consequences of his actions could have been detrimental to both Patient B and Patient B’s children. It could negatively impact Patient B’s trust and expectations of psychologists and Social Services, and could have led to children being placed with Patient B, when it was not safe for this to occur.
64. The Panel is satisfied that the risk of repetition of exactly the same behaviour, were the Registrant to find himself in similar circumstances, is limited. However, there remains concern that when under circumstances of similar pressure, lack of judgement or a failure to maintain professional standards may occur. This means that the Panel cannot be satisfied that there is no such future risk. In these circumstances the Panel finds that there are current concerns relating to the Registrant’s conduct.
65. Having regard to the critically important public policy issues, in the Panel’s assessment the Registrant’s current fitness to practise remains impaired. Confidence in the profession of Practitioner Psychologists would be undermined as members of the public will be concerned about the failure to behave objectively and work within his professional boundaries.
66. The public is entitled to expect Practitioner Psychologists to identify and report safeguarding concerns. Failing to do this is a serious matter. There is a need for the regulator to maintain confidence in the profession and to declare and uphold proper standards. In addition the Regulator needs to send a clear message to other healthcare professionals about standards and to maintain confidence in the regulatory process.
67. The need for public protection, especially the protection of service users or patients who are vulnerable, and public confidence in the profession is central to the finding of impairment. The public should be able to have confidence that Practitioner Psychologists will act with professionalism when dealing with patients.
68. The Panel did have regard to the fact that the Registrant has co-operated with the HCPC and has demonstrated regret and sadness over what has occurred.
69. The Panel finds that the Registrant has breached the HCPC Codes of Practice for Psychologist, particularly:
• 1a.1 - be able to practise within the legal and ethical boundaries of their profession
• 1a.5 - be able to exercise a professional duty of care
• 1a.6 - be able to practise as an autonomous professional, exercising their own professional judgement
• 1a.8 - understand the obligation to maintain fitness to practise
• 1b.2 - be able to contribute effectively to work undertaken as part of a multi-disciplinary team
• 1b.3 - be able to demonstrate effective and appropriate skills in communicating information, advice, instruction and professional opinion to colleagues, service users, their relatives and carers
• 2a.2 – be able to select and use appropriate assessment techniques
• 2a.4 - be able to analyse and critically evaluate the information collected
Standards of conduct performance and ethics:
• 6. You must act within your limits of your knowledge, skills and experience and if necessary, refer the matter to another practitioner.
70. In the Panel’s assessment, critically important Public Policy issues are engaged and continue to subsist in this case.
71. Accordingly the Council’s case is well founded.
Decision on sanction
72. In considering what sanction, if any, to impose, the Panel has taken account of the submissions made by Mr Lazarus on behalf of the Registrant. Mr Lazarus, addressed the Panel on some of the mitigating factors for the Registrant in this case, with reference to some of the testimonial evidence about the Registrant and indicated that the Registrant had fully engaged with the HCPC, during this regulatory process, had developed insight and apologised for his behaviour. Mr Lazarus submitted that the appropriate sanction in this case was a Conditions of Practice Order and that it should be of 12 months duration. This reflected the oral evidence that Mr Ma had given to the Panel at the Impairment stage of proceedings, and Mr Lazarus had received instructions from Mr Ma that an order of six months would be insufficient for him to make progress.
73. The Panel took advice from the Legal Assessor and has referred to the Indicative Sanctions Policy (September 2015), in arriving at a decision.
74. In considering the appropriate sanction the Panel has had regard to its earlier findings. The Panel while welcoming the Registrant’s insight into his behaviour and the remorse shown remain concerned at the risk of the Registrant’s behaviour falling below the necessary standards of practice, at times of future stress, if he were to work again in a role requiring HCPC registration.
75. In view of the seriousness of the case, to take no further action, would not be appropriate as it fails to address the serious issues raised, the risk to prospective service users and the public interest.
76. Imposing a Caution Order would be inappropriate given the Registrant’s failure to evidence full insight or to demonstrate the appropriate remedial action. The Registrant’s breach of professional standards is serious. Mr Ma has also acknowledged that he does not yet consider himself to be able to practise safely and autonomously. A Caution Order would therefore be insufficient to protect the public, maintain confidence in the profession and maintain confidence in the regulatory process.
77. The Panel went on to consider the imposition of a Conditions of Practice Order and considered this to be sufficient in addressing the risks identified. The Panel considered such an order to be appropriate, given that there are verifiable, realistic and measurable conditions of practice which could address the misconduct found.
78. The Panel balanced the Registrant’s right to practice in his chosen profession without restriction against the public interest and decided that the public interest was dominant. The Panel took into account the way that the Registrant had indicated that he positively wanted to return to practice, undertaking training and supervision and would comply with conditions. The Panel were of the view that no lesser sanction would adequately address the identified concerns. In all the circumstance, the Panel believes this to be a necessary and proportionate sanction.
79. The Panel did consider a Suspension Order but felt that given all the circumstances and nature of the findings this would be disproportionate.
80. A reviewing panel may be assisted by evidence of how you have developed your:
• reflective practice for example through a reflective diary/log or a reflective piece covering issues that have challenged you.
• self-care and
• resilience skills.
81. In addition how any improved report writing skills and techniques have been put into practise. This evidence need not be solely related to paid employment and some elements of the conditions imposed may be achievable by taking advantage of your current opportunities.
The Registrar is directed to annotate the Register to show that for 18 months, from the date that this Order comes into effect (“the Operative Date”), you, Mr Philip Ma, must comply with the following conditions of practice:
1. 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 which requires HCPC registration.
b. any agency you are registered with or apply to be registered with (at the time of application) when seeking to undertake professional work which requires HCPC registration.
c. any prospective employer (at the time of your application) when seeking to undertake professional work which requires HCPC registration.
2. When undertaking professional work, which requires HCPC registration, you must place yourself and remain under the supervision of a suitable and appropriately qualified supervisor who is registered with the HCPC and supply details of your supervisor to the HCPC within 21 days of commencing any such professional work. You must attend upon that supervisor as required and follow their advice and recommendations.
3. You must work with that supervisor to formulate a Personal and Professional Development Plan within 2 months of commencing supervision. That plan should be designed to address the deficiencies in the following areas of your practice:
- report writing, to the extent they form part of your practice and acting within your scope of practice
- maintaining professional boundaries
- reflective practice and self-care.
4. You must forward a copy of your Personal and Professional Development Plan to the HCPC within one month of it having been formulated.
5. You must meet with your supervisor on at least a monthly basis to reflect on and consider your progress towards achieving the aims set out in your Personal and Professional Development Plan.
6. You must allow your supervisor to provide information to the HCPC concerning your progress towards achieving the aims set out in your Personal and Professional Development Plan.
7. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer
The Panel imposed an Interim Conditions of Practice Order to cover the 28 day appeal period.
The Order will be reviewed before its expiry.
History of Hearings for Philip Ma
|Date||Panel||Hearing type||Outcomes / Status|
|30/05/2019||Conduct and Competence Committee||Review Hearing||Suspended|
|25/05/2018||Conduct and Competence Committee||Review Hearing||Conditions of Practice|
|28/11/2016||Conduct and Competence Committee||Final Hearing||Conditions of Practice|