Mrs Denise Whitworth
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1. On 18 September 2015 at Swansea Crown Court you were convicted of dishonestly failing to disclose information to make a gain for self/another or cause/expose other to a loss.
2. By reason of your conviction as set out at paragraph 1 your fitness to practise as a Practitioner Psychologist is impaired.
Service of Notice
1. The notice of today’s hearing dated 8 December 2016 was sent to the Registrant at her address as it appeared in the Register. The notice contained the date, time and venue of today’s hearing. The Panel was satisfied that notice of today’s hearing has been served in accordance with the Rules.
Proceeding in the Absence of the Registrant
2. Ms Thompson, on behalf of the HCPC, submitted that the hearing should proceed in the absence of the Registrant. She referred the Panel to a letter from the Registrant dated 2 February 2017. This letter states: “please note that I will not be attending future hearings in respect of my registration with regard to historical fitness to practice [sic] concerns.” She also states that she is returning all the evidence.
3. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC Practice Note “Proceeding in the Absence of the Registrant”.
4. The Panel exercised its discretion with the utmost care and caution and decided that it was appropriate to proceed with the hearing in the absence of the Registrant. The Panel considered the letter dated 2 February and was satisfied that the Registrant is aware that the hearing is scheduled for today. She made a clear statement that she would not attend today’s hearing. The Panel was therefore satisfied that she has waived her right to attend the hearing. The Panel decided that it was unlikely that she would attend on a later date if this hearing was adjourned. The Panel recognised that proceeding in the Registrant’s absence was potentially prejudicial to her, but decided that any prejudice to her was outweighed by the public interest. The Panel noted that the Registrant has made a complaint about delay, and decided that there is a public interest in proceeding with the case as expeditiously as possible.
Abuse of Process
5. The Panel considered a letter from the Registrant dated 2 January 2017 where she makes a complaint about delay and mismanagement by the HCPC. The letter is addressed to the Professional Standards Authority, and copied to the HCPC and the Registrant’s MP. The Registrant states that she believes that the HCPC is in breach of the Human Rights Act. The Panel also considered a letter dated 8 February 2017 from an HCPC case manager which replies to the Registrant’s complaints in her letters of 2 January and 2 February 2017.
6. The Panel invited comments from Ms Thompson on the content of the Registrant’s letters. Ms Thompson acknowledged that the Registrant’s letters could be interpreted as an application for a stay (a stop to these proceedings) on the ground of abuse of process. Ms Thompson outlined the history of HCPC proceedings against the Registrant from September 2013 and submitted that there was no abuse of process.
7. The Panel requested that further documents referred to in the correspondence from the Registrant should be obtained. The Panel was provided with letters from the HCPC to the Registrant dated 23 November 2016 and 9 January 2017, and an e-mail from the Registrant to her MP dated 20 December 2016.
8. The Panel decided to treat the Registrant’s complaint as an application for a stay on the ground of abuse of process. The Panel identified the following key elements in the chronology.
9. In September 2013 the HCPC received a referral relating to the Registrant’s alleged misconduct during the period October 2012 to April 2013 (the misconduct allegation). The alleged misconduct was that the Registrant continued to work in her private practice without the consent of her employer while she was certified unfit to work and claiming sick pay from her employer. This referral was considered by a Panel of the Investigating Committee in September 2013 and referred to the Conduct and Competence Committee. This case was given the reference number FTP29425.
10. The misconduct allegation was listed for a Final Hearing in September 2014. The Registrant’s legal representative made a request for an adjournment of the hearing on two grounds. The first ground was that the Registrant was unwell. The second ground was that the Registrant had been charged with a criminal offence based on the alleged misconduct. The adjournment was granted and a direction was made that the Registrant should provide a medical report by 24 April 2015. A medical report was never provided, although it was chased by the HCPC on 28 May 2015 and 19 June 2015. On 19 June 2015 the Registrant’s solicitor informed the HCPC that the Registrant’s criminal trial was listed for 15 to 17 September 2015 and asked for consideration of the misconduct allegation to be left until the outcome of the criminal proceedings was known.
11. The Registrant was convicted at the Swansea Crown Court trial (which in fact took place on 16 to 18 September 2015) and was sentenced on 9 October 2015. On 10 December 2015 the Registrant’s conviction was considered by a Panel of the Investigating Committee and referred to the Conduct and Competence Committee (the conviction allegation). The conviction allegation was given the reference number FTP44321.
12. The conviction allegation was listed for a hearing on 17 October 2016. The Registrant attended this hearing, but the hearing did not proceed because one of the Panel members had a previous involvement in the case.
13. On 23 November 2016 a letter was sent to the Registrant informing her that the HCPC intended to make an application to discontinue the misconduct allegation. On 8 December 2016 the Registrant was given notice of today’s hearing and on 9 January 2016 she was given notice of a hearing on 31 March 2017 to consider the discontinuance of the misconduct allegation.
14. The Panel accepted the advice of the Legal Assessor and noted that there is a high bar for the application of a stay on the ground of abuse of process. It is an exceptional step, even where the delay or the conduct of the Regulator is not justifiable.
15. When the matter is considered from the Registrant’s point of view, the Panel recognised that the overall delay in the chronology above, considered across both FTP matters, will undoubtedly have caused the Registrant anxiety and distress. The Panel also understood the Registrant’s complaint about the way in which the HCPC has managed certain parts of the process in recent months. Nevertheless, the Panel decided that the very high bar for imposing a stay on the ground of abuse of process was not met.
16. The relevant time period in relation to this conviction allegation is from the date of the sentence imposed by Swansea Crown Court in October 2015. The Panel’s view was that although the case could perhaps have been listed more speedily, this is not a case where delay has prejudiced the Registrant to the extent that a fair hearing cannot be held. There is no evidence before the Panel that the quality of the evidence has been significantly affected by the passage of time.
17. The Panel considered that this was not a case where there is an abuse of process because the Registrant is being required to answer for a second time a matter that had already been considered and concluded by the HCPC. The HCPC properly investigated and continued the misconduct allegation. At the request of the Registrant’s solicitor this was put on hold pending the outcome of the criminal trial. Once the trial had been concluded and the HCPC was aware that the Registrant had been convicted, the HCPC process has properly continued on the basis of the conviction. In these circumstances it is of course understandable that a decision has been made not to continue with the misconduct allegation. However, the Panel is concerned that the process followed by the HCPC appears to be slow and overly bureaucratic. It seems wholly inappropriate to convene a further hearing, at considerable cost, merely for the purpose of discontinuing the misconduct allegation.
18. The Panel considered the Registrant’s criticism that her case has been mismanaged by the HCPC. The Panel’s view is that the HCPC is open to criticism for its failure to identify that one of the Panel members due to sit in the hearing on 17 October 2016 had previous involvement in the matter. The administrative systems should have identified this previous involvement. The adjournment added to the Registrant’s distress and anxiety. However, the Panel decided that it did not prejudice the Registrant’s right to a fair hearing.
19. The HCPC can also be criticised for the way in which it explained its decision to apply to discontinue the misconduct allegation to the Registrant. In the Panel’s view the letter dated 23 October 2016 is poorly drafted. The letter refers to a review of the evidence and the insufficiency of that evidence to prove the whole of the allegation. This could well have been misleading, particularly for an unrepresented Registrant, because it does not accurately state the reason for the application to discontinue. The letter states that the conviction allegation will be relisted for a final hearing, but overall the letter is unclear on the interrelationship between the two sets of proceedings.
20. In its letter dated 8 February 2017 the HCPC state: “On 23 November 2016 we wrote to advise you that we were discontinuing the allegation in the case of FTP29425 as the facts in this case were the same as the facts in your case of FTP43321, for which you received your conviction”. This is not the reason given in the letter dated 23 November 2016, and the Panel can understand why the Registrant would be confused and take the view that her case has not been managed appropriately.
21. Although the Registrant may have been misled by the correspondence in relation to the reason for the HCPC application to discontinue the misconduct case, the Panel was satisfied that she was not misled into believing that there was no longer any case proceeding against her.
22. The Panel did not find any evidence that the content of the letter of 23 November 2016 has made a fair hearing impossible. The criticisms the Panel has made of the HCPC do not approach a finding that it would be offensive to the Panel’s sense of justice for this hearing to continue. The continuance of the hearing today in these circumstances would not undermine public confidence in the regulatory system.
23. The Panel concluded that the continuance of the hearing is not an abuse of process and it did not order a stay of the proceedings.
24. The Registrant was employed as a Practitioner Psychologist at Cwm Taf University Health Board (“UHB”). The Registrant was employed on a part time basis, working 21 hours a week. The Registrant also conducted a private psychology business called FACETS which she undertook in the two days a week she was not working at UHB. Her manager, JD, was aware of this private work and it was permitted.
25. On 18 September 2015, the Registrant was tried and convicted of dishonestly failing to disclose information to make a gain for self/another or cause/expose other to a loss. She was sentenced on 9 October 2015. The sentence was a community sentence for a period of 12 months with supervision for 12 months, unpaid work of 150 hours, a compensation order in the sum of £1,690.54 and prosecution costs of £1,300.
26. The Registrant attended work at UHB on 30 October 2012. She met with JD on that day. The Registrant was unhappy with the role she had been allocated at UHB, and expressed her concerns about the impact on her health of the travelling that she was required to undertake when visiting schools to attend clients. The Registrant left work on 30 October 2012, complaining of a back condition, and remained on sick leave until 28 April 2013. After a one week period covered by self-certification, she submitted MED3 certificates provided by her General Practitioner. The MED3 certificates indicated that back pain was the condition causing her absence from work.
27. On 12 February 2013 the Local Counter Fraud Specialist (LCFS) received a referral from UHB’s Human Resources Department which alleged that the Registrant was running a private psychology business when she was on long term sickness absence. The referral stated that private consultations had taken place at Cyncoed Consulting Rooms in Cardiff. The Manager of Cyncoed confirmed the hire of a consulting room on five different dates during the period of the Registrant’s sick leave from her NHS post.
28. The Registrant was interviewed under caution on 11 April 2013 where she confirmed she had made the Cyncoed bookings. She stated that JD had informed her in the meeting on 30 October 2012 that he did not see a problem if she continued her private business whilst on sick leave.
29. The LCFS interviewed the Registrant’s manager, JD, who confirmed that there was no discussion of her private work during the meeting on 30 October 2012 or at any other time and that the Registrant did not have permission to run her business while she was absent on sick leave.
30. The Registrant was interviewed again on 18 August 2014. She was shown documents referring to Cyncoed and documents from Regus in Swansea where she had also hired rooms for private consultations during her sickness absence. The Registrant confirmed that she had made the bookings while on sick leave from her NHS role, but continued to maintain that JD was aware that she was doing so.
31. The LCFS investigation identified that the Registrant had hired rooms at Cyncoed Consulting Rooms or Regus Swansea on fifteen dates when she was on sick leave from UHB. The value of the Registrant’s fraud was calculated as £1,690.54, which is the gross cost of the Registrant’s salary for the fifteen dates.
32. The UHB Sickness Absence Policy in place at the time stated: “an employee absent because of sickness is regarded as unfit to work and must not undertake any employment outside their organisation, unless it has first been agreed by their manager”. The policy also stated: “an employee who does undertake other work during sickness absence, without the prior written consent of the manager, may be considered in breach of contract and will be subject to disciplinary action which may result in the involvement of the counter fraud department and/or dismissal”. In interview the Registrant stated that she had previously worked as a manager and was therefore aware of the policy.
Decision on Facts and Grounds
33. The Panel referred to the Certificate of Conviction dated 15 October 2015 and found that particular 1 is proved.
34. The evidence provided to the Panel relating to the circumstances surrounding the conviction was the case summary, records of interviews with the Registrant dated 11 April 2013 and 18 August 2014 and the sentence hearing transcript. This evidence did not indicate clearly the basis on which the case was put by the Prosecution. However, it appeared that the case turned on whether or not the Registrant’s manager, JD, had given his permission for her to continue her private work in a discussion on 30 October 2013. It can be inferred that the jury decided this issue against the Registrant because she was convicted of dishonestly failing to disclose information.
35. The Panel noted that the mischief of the dishonesty in this case was that that the Registrant did not notify her manager when she knew that she was required to do so under her employer’s policy and that this omission was to make a gain for herself or cause loss to her employer, UHB. If the Registrant had obtained permission from her manager she would not have acted dishonestly in continuing to carry out private work.
Decision on Impairment
36. The Panel applied the guidance in the HCPC Practice Note “Finding that Fitness to Practise is impaired” and accepted the advice of the Legal Assessor. The Panel considered the Registrant’s fitness to practise at today’s date.
37. The Panel first considered the personal component, which is the Registrant’s current competence and behaviour. The Registrant has not participated in this hearing because she is no longer willing to engage with the HCPC due to her complaints as explained above. The Panel therefore has not had an opportunity to hear anything from her. She has not acknowledged the dishonesty or her conviction. On the basis of a continuing denial of dishonesty, she has not acknowledged that her conviction could have brought the profession into disrepute. Even on her own case, that she did inform her manager, she has not acknowledged that she could have acted differently, for example by ensuring that there was a written record of her manager’s permission in accordance with the policy. There is nothing to indicate that the Registrant has any degree of insight into her actions or recognises that she has done anything wrong.
38. The Panel considered carefully whether the Registrant’s lack of insight creates a risk of repetition. Although it is possible that someone who has not demonstrated any remediation or insight might act in the same way again, the Panel decided it was more likely that the Registrant’s conviction would act as a very considerable deterrent against any repetition. The conviction has had serious consequences for the Registrant, and those consequences would be even more grave if the Registrant were to repeat dishonest criminal conduct. Therefore, the Panel did not find that there was a significant risk of repetition and did not conclude that the Registrant’s current fitness to practise is impaired on the basis of the personal component.
39. The Panel next considered the public component, which includes consideration of the need to protect service users, to uphold standards of conduct and behaviour, and to maintain public confidence in the profession and the regulatory process.
40. The Panel decided that there were no public safety concerns. There were no issues relating to the Registrant’s clinical abilities or her honesty in relation to her financial dealings with her clients.
41. However, the Registrant has acted in a way which is seriously in breach of the HCPC Standards of Conduct, Performance and Ethics (applicable in 2012-2013) Standard 13: “You must behave with honesty and integrity and make sure that your behaviour does not damage public confidence in you or your profession”. The Registrant has in the past acted dishonestly and in breach of a fundamental tenet of the profession. In the Panel’s judgment a finding that the Registrant’s current fitness to practise is impaired is necessary in order to declare and uphold standards of conduct.
42. The Panel considered the impact of the Registrant’s conviction on public confidence in the profession. The conviction is in the public domain and it is likely to be of concern to the public because it involves dishonesty, and, as indicated in the sentencing remarks, the Registrant was “taking money out of a system which you knew, as we all know, is struggling to make ends meet”. The Panel decided that the conviction was likely to have a negative impact on public confidence in the profession. If the Panel took no action, public confidence would be damaged because the public rightly expect the Regulator to take action in a case where a Registrant has been convicted of a dishonesty offence.
43. Finally, the Panel considered whether the Registrant might have remediated the impairment of her fitness to practise since the time of her conviction. The Panel noted that dishonesty is more difficult to remediate than some other issues because it involves attitudinal failings. The Panel did not consider that the Registrant’s dishonesty was of so serious a nature that it should be seen as being incapable of remediation. However, in the absence of any evidence of the Registrant’s insight into the impact of her conduct and her conviction, the Panel was unable to conclude that the impairment had been remediated.
44. The Panel therefore decided that the Registrant’s current fitness to practise is impaired on the basis of the public component.
Decision on Sanction
45. The Panel accepted the advice of the Legal Assessor and applied the guidance in the HCPC “Indicative Sanctions Policy”. The purpose of a sanction is not to punish the Registrant, though it may have that effect. In this case there are no public safety concerns. In determining sanction the Panel must give appropriate weight to the wider public interest, which includes the deterrent effect to other registrants and the need to maintain public confidence in the profession and the regulatory process.
46. The Panel identified the following aggravating circumstances:
• the Registrant’s dishonesty was in a professional context;
• her dishonesty involved an abuse of trust;
• the conduct persisted over a sustained period of some months.
47. The Panel identified the following mitigating circumstances:
• the absence of any other concerns;
• no concerns have been raised about the Registrant’s clinical practice.
48. The Panel considered the available sanctions in ascending order of severity. It would not be sufficient to impose no sanction in the circumstances of this case. Taking no action would not address the public interest concerns the Panel has identified.
49. A Caution Order would not be sufficient to mark the seriousness of the Registrant’s conviction. The Registrant’s conduct cannot be described as minor or isolated, and there is no evidence of remediation or insight.
50. The Panel next considered a Conditions of Practice Order. The misconduct which underlies the conviction involves an attitudinal issue rather than clinical errors and it did not arise directly in a clinical context. The Panel was unable to formulate workable conditions which would address the concerns it set out in its impairment determination. Those concerns related to public confidence in the profession and the need to uphold standards of conduct and behaviour. Even if the Panel could formulate workable conditions, the Panel did not consider that conditions would be a proportionate response, given the nature and seriousness of the Registrant’s conviction.
51. The Panel next considered a Suspension Order. The Indicative Sanctions Policy at paragraph 32 states that: “Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus striking off is not merited”. The Panel considered that this is applicable because the allegation is of a serious nature, but the conduct is unlikely to be repeated.
52. Paragraph 34 of the Indicative Sanctions Policy states that: “If the evidence suggests that the registrant will be unable to resolve or remedy his or her failings then striking off may be the more appropriate option. However, where there are no psychological or other difficulties preventing the registrant from understanding and seeking to remedy the failings then suspension may be appropriate”. In its impairment determination the Panel decided that the conduct which underlies the conviction is capable of remediation. The Registrant engaged with the HCPC process for much of its duration. She was represented at the hearing which was due to take place in September 2014 and she attended the hearing on 16 October 2016 that did not go ahead. The Registrant has only very recently withdrawn her engagement, in the circumstances set out above in the Panel’s consideration of abuse of process. There Panel is not aware of any psychological or other difficulties which would prevent the Registrant from seeking to remedy her past behaviour.
53. The Panel considered that a Suspension Order would provide protection for the public interest in the sense that it would mark the seriousness of the Registrant’s past behaviour. Although the Registrant has stated that she does not intend to practise as a Psychologist, the Panel read this statement in the context of her frustration with the process rather than as an unequivocal statement of future intention. A Suspension Order would give the Registrant the opportunity to demonstrate remediation and her suitability to return to practice. The Panel was satisfied that a Suspension Order would not damage public confidence in the profession in a case where there are no clinical concerns and there is the possibility of remediation. It may be possible in the future for the Registrant to return to practice if she does demonstrate remediation and insight and this would enable a competent practitioner to return to practice and provide a service to the community. A Suspension Order would therefore strike an appropriate balance between the public interest concerns the Panel has identified and the Registrant’s interests.
54. The Panel considered a Striking Off Order and considered the Indicative Sanctions Policy, at paragraphs 39-43. Although there has been denial and an apparent lack of insight in this case the Panel did not see that in itself as justifying a Striking Off Order given that the Registrant has at an earlier stage engaged with the HCPC process and that there is a potential for remediation. In the light of the Panel’s determination on impairment the Panel did not conclude that the Registrant’s past conduct was fundamentally incompatible with registration. Although the dishonesty is serious, it is not at the top end of the scale of seriousness for dishonesty. There were certain factors that led the Registrant to withdraw her engagement with the HCPC process and the Panel has a degree of sympathy with the Registrant’s frustration.
55. The Panel decided that this is not a case where a Striking-Off Order is necessary in order to provide sufficient deterrent, nor is it necessary to ensure that public confidence in the profession is maintained. The Panel concluded that it would be disproportionate to impose a Striking-Off Order where the public interest can be properly protected by a Suspension Order. The Registrant should be given the opportunity to demonstrate her suitability to return to practice which could be in the public interest.
56. The Panel therefore decided that the appropriate and proportionate order is a Suspension Order for the maximum period of 12 months. The maximum period is appropriate to mark the seriousness of the conviction and to allow the Registrant time to reflect on the Panel’s decision and to prepare a considered response to it.
57. The Suspension Order will be reviewed before it expires. A future review Panel may be assisted by:
• the attendance of the Registrant in person;
• the Registrant’s reflections on the impact of the conviction on the reputation of her profession and public confidence in the profession;
• the Registrant’s reflections on the importance of strict adherence to policies;
• References or testimonials relating to her honesty and integrity (for example from the Registrant’s employer in any paid or voluntary work she has undertaken);
• Evidence that the Registrant has kept up to date with professional developments.
That the Registrar is directed to suspend the registration of Mrs Denise Whitworth for a period of 12 months from the date this order comes into effect.
The Order imposed today will apply from 17 March 2017 (the operative date)
This Order will be reviewed again before its expiry on 17 March 2018.
History of Hearings for Mrs Denise Whitworth
|Date||Panel||Hearing type||Outcomes / Status|
|06/02/2018||Conduct and Competence Committee||Review Hearing||Struck off|
|05/01/2018||Conduct and Competence Committee||Final Hearing||Hearing has not yet been held|
|16/02/2017||Conduct and Competence Committee||Final Hearing||Suspended|