Miss Deborah J Watson
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1. On 16 July 2015:
a) In relation to Service User A:
i) Left her in a therapy suite unaccompanied in breach of the employer’s regulations and guidelines; and/or
ii) Did not consider the observation and engagement care plan for Service User A; and/or
iii) Made an incorrect assessment of the observation and engagement care plan.
b) In relation to Service User B:
i) Allowed him to leave the therapy suite without escort; and/or
ii) Did not check the observation and escort requirements of Service User B with ward staff; and/or
iii) Did not follow the observation and escort requirements of Service User B.
c) In relation to Service User C:
i) Did not check following the observation and escort requirements of
Service User C with ward staff; and/or
ii) Did not follow the observation and escort requirements of Service User C.
2. Between 26 August and 26 November 2014, in relation to Service User D did not ensure:
a) Follow-up; and/or
b) Review; and/or
c) that interventions were provided.
3. Between April 2014 and October 2014 did not seek clinical supervision.
4. On 19 November 2014, in respect of a GP referral of Service User E did not:
a) Follow up the referral; and/or
b) Prepare a risk assessment; and/or
c) Prepare a risk management plan.
5. The matters set out in paragraphs 1 - 4 constitute misconduct and/or lack of competence.
6. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
1. The HCPC made an application to amend the particulars of the allegation. The Panel accepted the advice of the Legal Assessor and considered whether there was any unfairness or prejudice to the Registrant, by reason of the proposed amendments, which serve to clarify the HCPC’s case in accordance with the evidence. There was no prejudice to the Registrant from this application and she has not raised any objection. The Panel granted the amendment application in order to clarify the HCPC’s case. The Panel made an additional amendment to the stem of the allegation, at the conclusion of the Registrant’s case, to delete reference to a particular employer. It was not possible to identify exactly what the name of the employer was at the relevant times due to organisational changes which had occurred at the Trust. Both parties agreed the Trust named was not the relevant employer at both the dates in question and did not object to the proposed amendment.
2. The Registrant was employed as a Band 6 Care Coordinator Occupational Therapist (OT) initially by Leeds and York Partnership NHS Foundation Trust and from 1 October 2015 by Tees, Esk and Wear Valleys NHS Foundation Trust (the Trust). The Registrant was employed in a community setting but following concerns about her performance, including the matters alleged in November 2014, a performance improvement plan was implemented and the Registrant was moved to a role in an acute mental health ward. As part of the plan the Registrant was being supervised and a further concern arose that the Registrant had left a service user unaccompanied in a therapy suite. TS conducted an investigation during which further issues were identified.
3. The Panel has considered sequentially:
(1) whether the factual particulars are proved;
(2) if the proved facts amount to misconduct or lack of competence, and if so;
(3) is the Registrant’s fitness to practise currently impaired?
4. The Panel accepted the advice of the Legal Assessor that the burden of proof is upon the HCPC on the balance of probabilities, in relation to findings of fact. Whether any proved facts in this case amount to the statutory grounds of misconduct or lack of competence and the issue of current impairment are not matters which need to be proved, but are matters of judgement for the Panel.
Decision on facts:
5. The Panel heard oral evidence from the following HCPC witnesses and found each of these witnesses to be objective:
• TS (mental health nurse) employed as a Locality Manager by the Trust was credible, consistent and did not speculate or stray outside her professional knowledge. TS gave clear evidence in respect of the issues of risk and observations. She was less clear in relation to the clinical supervision support process, although she was very clear that clinical supervision was a requirement.
• DBM (OT) employed as a Service Manager by the Trust. The Panel found her to be credible, consistent and clear in relation to the risks to service users. She had limited interaction with the Registrant over a short period of time. DBM had been asked to observe the Registrant and “sign off” the Registrant’s competencies. This witness also had difficulty in explaining the mechanics of how clinical supervisors were identified, but was clear that clinical supervision was a necessity.
• ED (mental health nurse) employed as a Community Services Manager by the Leeds and York Partnership NHS Foundation Trust and formerly employed as a Locality Manager. The Panel found him to be objective. He reflected on what had happened and how the Registrant had been managed and recognised things could have been done differently. His evidence was clear in relation to the Registrant’s failings, but he also found it difficult to clearly explain the process for arranging clinical supervision. He too was clear that clinical supervision was essential.
6. The Panel also heard oral evidence from the Registrant. The Registrant admitted all the factual particulars. The Registrant explained her long standing difficulties at work and told the Panel she had experienced significant health issues for many years. The Panel found the Registrant had difficulty articulating her thoughts and her response to questions lacked focus and clarity. Although she acknowledged and recognised her failings, she did not give the Panel a clear impression that she had fully understood the implications of her failings, or the potential implications of her actions and the risk posed to service users.
7. The Panel also considered written testimonials from JH and EM.
Particulars 1a, 1b and 1c
8. The Panel relied on the same evidence for all parts of Particular 1 as the events occurred at the same time.
9. Service User A was not detained in hospital under the Mental Health Act but was at risk of self-harm and absconding. She attended an arts and crafts therapy session run by the Registrant, on 16 July 2015, and should not have been left alone after being escorted to the therapy suite. The Registrant wrongly assumed Service User A was on “general observation” and therefore left her alone for about ten minutes. The Registrant went to collect Service User B from a hospital ward without checking the care plan or observation level for Service User A. The therapy suite contained equipment and ligature points which posed a hazard to Service User A, who could also have absconded from the insecure suite. There were further risks because the fire door had not been opened and because the therapy suite could have been accessed by members of the public.
10. Service User B was detained in hospital under the Mental Health Act. He was at risk of self-harm and absconding when he attended the arts and crafts therapy session run by the Registrant, on 16 July 2015. He posed a risk due to violence, aggression and vulnerability and Service User B should have been escorted between the therapy suite and the ward. The Registrant wrongly assumed he was on “general observation” and therefore allowed him to return unaccompanied to the ward. She failed to check the observation and escort requirements for Service User B.
11. Service User C was a hospital in-patient who had been escorted to the therapy suite on 16 July 2015. The Registrant failed to check the observation and escort requirements for Service User C. Therefore she was unaware if there were any risks associated with Service User C to assist the Registrant to deal appropriately with any problems which arose during the session.
12. The Panel finds particulars 1a, 1b and 1c are proved. The evidence of DBM was very clear as to these events. She told the Panel that she had arrived at the therapy suite to find Service User A alone. She clearly described the situation and explained that she had stayed in the suite while the Registrant was absent. DBM described the risks and gave clear evidence of what the Registrant should have done for each Service User. Prior to the therapy session, the Registrant could and should have accessed information concerning service users care plans, escort requirements and observation needs. DBM’s views of the risks created by the Registrant were supported by TS who also provided details of the therapy suite. The Panel also referred to the internal investigation documents compiled shortly after the events occurred and which supported the evidence of TS and DBM.
13. All the witnesses including the Registrant gave evidence consistent with their witness statements and the other material. The Registrant admitted particulars 1a, 1b and 1c and recalled the steps she had or had not taken. She confirmed that the matters alleged had taken place.
14. The Registrant states that she should have been more proactive in seeking clinical supervision. Her line managers suggested that she, like all other OT’s at the Trust, should have clinical supervision in place. However it was clear from the documentation, particularly the management supervision records, that the Registrant had no clinical supervision from April to October 2014 and there was no evidence that she had actively sought it.
15. The Panel finds particular 2 is proved. The Panel notes the lack of clarity as to the precise mechanism for obtaining clinical supervision. However it was clear from the documents that the Registrant was prompted to seek clinical supervision. All the HCPC witnesses working at the Trust were clear that both clinical and management supervision were a requirement and that they served different purposes. Management supervision was designed to monitor issues such as workload, training and performance. Clinical supervision was a reflective process and provided support from a fellow occupational therapy professional and would consider cases and professional interactions. Both forms of supervision were expected to be in place to ensure that the Registrant was managing her workload and practising safely and effectively. ED articulated the benefits of accessing clinical supervision and the risks of not accessing clinical supervision.
16. The Registrant did not dispute this particular. She provided an explanation that she had not sought clinical supervision because she lacked trust in those who could provide it. She also said she had not wanted to expose her lack of knowledge to another occupational therapist. The Registrant was aware that all other occupational therapists had or were seeking clinical supervision.
17. The Registrant was the Care Coordinator for Service User E on 19 November 2014, when a General Practitioner (GP) contacted the Registrant to provide information that Service User E had disclosed clear plans to end her life. The Registrant failed to actively assess the risk and sent an email to an unqualified member of staff concerning the disclosure, before going on annual leave. Service User E subsequently deteriorated and required intervention from a crisis team. The Registrant states she wrongly assumed Service User E was seeking support. The Registrant said that she had made attempts to contact Service user E’s GP, but had been unable to do so.
18. The Panel finds particular 3 is proved. ED had a clear recollection of this event and told the Panel that as a consequence he had instigated a performance management process because the matter was so serious. He explained to the Panel the protocols which the Registrant should have followed to deal with this escalating risk to a Service User. He said that the Registrant should have known that it was a priority.
19. The Registrant accepted she had not taken appropriate steps. She said that this was the first occasion, while acting in a care coordinator role when she had dealt with an escalated risk to a service user. She said that she had prioritised completing risk assessment paperwork for other service users. The Registrant said that at the time she was unaware of the options available to her such as referring to the duty desk or a more senior colleague, for help to deal with the situation. Although she had attempted to call the GP, the Registrant had not followed this up, or checked the GP’s phone number, when she could not make contact with the GP. The Registrant had taken planned leave following this incident without taking other steps to ensure that Service User E was no longer at risk.
20. Misconduct is a word of general effect, involving some serious act or omission which falls short of what would be proper in the circumstances. The standard of propriety may often be found by reference to the rules and standards ordinarily required to be followed by a practitioner.
21. The rules and standards ordinarily required to be followed by the Registrant would have been the HCPC Standards of Conduct, Performance and Ethics. The panel concluded that the Registrant had breached the following standards:
1. You must act in the best interest of service users.
3. You must keep high standards of professional conduct.
5. You must keep your professional knowledge and skills up to date.
6. You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
7. You must communicate properly and effectively with service users and other practitioners.
8. You must effectively supervise tasks that you have asked other people to carry out.
12. You must limit your work or stop practising if your performance or judgement is affected by your health.
The Panel has also determined that the Registrant has breached the
HCPC Standards of proficiency for Occupational Therapists including but not limited to the following Standards:
1.1 know the limits of their practice and when to seek advice or refer
to another professional
2.1 understand the need to act in the best interests of service users
at all times
2.8 be able to exercise a professional duty of care
3.3 understand both the need to keep skills and knowledge up to
date and the importance of career-long learning
4.6 understand the importance of participation in training, supervision
15.1 understand the need to maintain the safety of both service users and those involved in their care.
22. A lack of competence connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of work. The standard to be applied is that applicable to the post to which the Registrant had been appointed and the work she was carrying out. In this case the Registrant was employed as a Band 6 OT.
23. The Registrant denies misconduct but admits lack of competence in respect of particulars 1a, 1b, 1c and 3. She was neutral in relation to whether Particular 2 amounted to misconduct or lack of competence.
24. The Panel has taken into account the Registrant’s ongoing health issues. It noted the GP and occupational health records which include references to some of the health issues the Registrant identified, albeit that the records do not cover the precise period covered by the allegation. Nevertheless, the Registrant was functioning as an occupational therapist on the dates in question and making decisions in relation to service users. Her health issues did not appear to have been so impactful that she was incapable of carrying out her duties. In her 2015 performance plan, it is documented that the Registrant achieved certain competencies. In November 2014 she consciously decided to take leave to deal with her health issues, but had not discussed this with her colleagues to make appropriate arrangements to deal with the heightened risk identified in relation to Service User E.
25. The Panel finds each of the facts proved amount to misconduct rather than lack of competence. The facts found at Particulars 1 – 3 relate to fundamental aspects of service user care. They include basic requirements of OT practice including the ability to undertake appropriate risk assessments, reading documentation in respect of service users and obtaining appropriate support from fellow professionals. The Panel does not accept that the Registrant was unaware of her duties in respect of escorting and for checking whether it was safe to leave service users unattended or unescorted.
26. No harm was caused to service users by the Registrant’s misconduct but potentially serious unnecessary risks of harm were created. These matters do not arise from a lack of competence, because they were serious incidents caused by basic failings and the Registrant would have been aware of this, based upon her extensive experience in the field of adult mental health, working at a Band 6 level.
27. The Panel notes that the Registrant made a conscious decision not to seek clinical supervision when it was a requirement for her to do so.
Decision on Impairment
28. The Panel considered the Practice Note on Finding that Fitness to Practice is Impaired. In determining whether fitness to practise is impaired, Panels must take account of a range of issues which, in essence, comprise two components: the ‘personal’ component: the current competence, behaviour etc. of the individual registrant; and the ‘public’ component: the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.
29. The HCPC submits that the Registrant’s fitness to practise is impaired on public and personal grounds. The Registrant admits the allegation that her fitness to practise is currently impaired.
30. The test of impairment is expressed in the present tense, that the Registrant’s fitness to practice is impaired at the current date. The Panel has taken into account the lapse of time since these matters occurred and has looked at the Registrant’s past actions in order to assess her likely future performance.
31. Mrs Justice Cox in the case of CHRE v (1) NMC and (2) Grant stated that: “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in her or her current role, but also whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in the particular circumstances.”
32. Mr Justice Silber stated in R (on the application of Cohen) v General Medical Council, there is a need to declare and uphold proper standards of conduct and behaviour so as to maintain public confidence in the profession.
33. The Panel finds the Registrant’s fitness to practise is impaired under the personal and public components.
34. In relation to the personal component the Registrant had completed some self-reflection and identified a plan which outlined the steps she would take to improve her knowledge and skills. The Registrant has not implemented any aspects of the plan since she last worked in 2015. The Panel were also not persuaded that the Registrant had fully understood her professional responsibilities. The Panel concluded that the Registrant has not addressed the risks identified and the proposed remediation has not yet taken place. The Panel also had concerns that the Registrant was being unrealistic as to how achievable her plan would be. In the absence of any remediation the risk of repetition remains high. The Panel also concluded that the Registrant has not fully appreciated the impact of her misconduct on service users and colleagues and that therefore she has limited insight.
35. Public confidence in the profession and the regulatory process would be undermined if a finding of current impairment was not made in this case. There is a need to uphold the HCPC Standards of conduct and proficiency by finding that there is current impairment in this case.
Decision on Sanction:
36. The purpose of fitness to practise proceedings is not to punish registrants, but to protect the public. In coming to its decision on sanction the Panel has given careful consideration to all the circumstances of this case and all the evidence which contributed to its findings on the facts, the statutory grounds and current impairment.
37. It has considered the submissions made on behalf of the HCPC and the Registrant and has accepted the advice of the Legal Assessor. In accordance with that advice the Panel has had due regard to the HCPC Indicative Sanctions Policy (ISP). The Panel has noted that any sanction must be proportionate, that it is not intended to be punitive, and that it should be no more than is necessary to meet the legitimate purposes of providing adequate protection to the public. It should also address the wider public interest, namely: to protect the reputation of the profession, maintain confidence in the regulatory system, and declare and uphold proper professional standards.
38. The Panel first identified the aggravating and mitigating factors that it should take into account.
39. The aggravating factors are:
• The seriousness of the misconduct which involved a number of service users who were particularly vulnerable.
• There were potentially very serious consequences because of the Registrant’s failings
• This was not an isolated incident of misconduct
• The Registrant has demonstrated limited insight
• The Registrant was an experienced practitioner working at a senior level (Band 6)
• The Registrant failed to comply with the requirements of basic OT practice.
40. The mitigating factors are:
• The Registrant received no personal gain from her misconduct
• There was no actual harm to service users
• There have been no previous HCPC proceedings against her
• She has engaged with these proceedings
• She has made a conscious decision not to work as an OT since March 2016
• She has produced a proposed plan for remediation
41. Taking no action would be inappropriate in this case due to the seriousness of the issues and the potential harm which could have arisen.
42. The Panel has decided that a caution order is also not an appropriate sanction in this case due to the serious risk of repetition and the fact that this would not impose any restriction on her practice. It would also not protect the public given the serious nature of the incidents concerned. In addition the Registrant has not demonstrated sufficient insight.
43. Conditions of practice are most appropriate where a failure is capable of being remedied and when the Panel is satisfied that allowing the Registrant to remain in practice poses no risk of harm. The Registrant has not satisfied the requirements for conditions of practice to apply. The Panel accepts the issues raised are capable of correction and that a reviewing panel could be able to determine whether any conditions of practice had been or were being met. Notwithstanding the Registrant’s stated commitment to change, the Panel is not satisfied at today’s date that she could be trusted to make the determined effort required to remedy her failings which were not persistent but were serious. The Panel decided that the conditions it deemed necessary to provide sufficient public protection in this case would have the effect of the Registrant being confined to the role of an unregistered assistant or support worker. The Panel also concluded that conditions of practice would not be sufficient to maintain public confidence in the profession or provide the necessary deterrent effect.
44. The Panel concludes that a suspension order for 12 months is the proportionate sanction to provide sufficient public protection. The Panel also considered imposing a striking off order but decided not to do so because striking off would be disproportionate in this case.
45. A period of suspension will also provide the Registrant with the opportunity to demonstrate that she would be able to remediate her failings. The Suspension Order will be reviewed by another panel before it expires. The reviewing panel is likely to be assisted by;
• Evidence that the Registrant has sought guidance or support from the Royal College of Occupational Therapists.
• Evidence that the Registrant has made significant progress in implementing the plan which she has produced at this hearing, including all aspects of OT practice and IT skills.
• The Registrant providing reflections on how her continued professional development undertaken as part of the plan would impact on her future practice.
• The Registrant’s attendance at the review hearing.
The Registrar is directed to suspend the registration of Miss Debra J Watson for a period of 12 months from the date this order comes into effect.
This order will be reviewed again before its expiry on 13 January 2019.
The Panel makes an Interim Suspension 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. 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.