Foysol Baree

Profession: Occupational therapist

Registration Number: OT66415

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 09/04/2018 End: 16:00 11/04/2018

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

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as an Occupational Therapist and during the course of your employment at South West London and St. George’s Mental Health NHS Trust:

1. On or around 5 February 2016 you attempted to search the confidential medical RIO records of Colleague Y on several occasions;

2. On or around 8 April 2016, you accessed and viewed the confidential
medical RIO records of Colleague A on two separate occasions;

3. Between approximately 8 April 2016 and 15 April 2016, you shared
confidential and personal information about Colleague A with Colleague X and/or Colleague Y;

4. On or around 20 May 2015 you accessed and viewed the confidential medical RIO records of Colleague X;

5. Between April and June 2016, you made inappropriate and / or offensive comments to and/or about Colleague A, including 'you are a fat bastard, you are 42 and still live with your mum', or words to that effect.

6. The matters set out in particulars 1 to 5 constitute misconduct.

7. By reason of your misconduct, your fitness to practise is impaired.

Finding

Preliminary matters
Application to amend Particulars
1. Mr Ferson applied to amend Particular 4 on the basis that the proposed amendment would correct what is effectively a typographical error and would more accurately reflect the case against the Registrant.

2. The Registrant’s representative, Mr Desai, did not oppose the amendment.

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

4. The Panel accepted that the amendment would correct an apparent typographical error and that, as a consequence, Particular 4 would more accurately reflect the case against the Registrant. The Panel concluded that there would be no injustice to the Registrant if it allowed the application.

5. The Panel agreed to the amendment.

Application to allow hearsay statements into evidence
6. Mr Ferson informed the Panel that Colleagues A and X had both produced sworn witness statements for these proceedings. However, for reasons of health, neither was available to give evidence at the hearing. He asked the Panel to allow their hearsay statements into evidence in accordance with Section 1 of the Civil Evidence Act 1995. He said it would be a matter for the Panel to determine what weight it should accord to the statements in accordance with section 4 of the Act.

7. Mr Desai stated that the Registrant did not oppose the application, but invited the Panel to give the statements only limited weight given that they provide hearsay evidence and neither witness can be cross-examined.

8. The Panel accepted the advice of the Legal Assessor. It considered that the statements are relevant to the matters in issue, and that it would have been desirable for Mr Desai to have the opportunity to cross examine the witnesses on the Registrant’s behalf. However, in the circumstances, the Panel concluded that any unfairness to the Registrant could be off-set by the Panel giving appropriate weight to the evidence in light of the witnesses’ non attendance at the hearing. Accordingly, the Panel agreed to Mr Ferson’s application.       

Background                          
9. The Sutton & Merton Mental Health Learning Disability Team (the Team) is a part of South West London and St George’s Mental Health NHS Trust (the Trust). Whilst employed within the Team as an Occupational Therapist, the Registrant viewed or attempted to view the confidential records of three colleagues via the RIO record system and informed colleagues of what he had found in the medical records of one colleague.

10. In addition, it is alleged that the Registrant made inappropriate and/or offensive comments to and about one of his colleagues.

Decision on facts
11. At the outset of the hearing the Registrant admitted Particulars 1-4. The Registrant denied Particular 5.

12. In considering Particular 5, the Panel applied the principles that the burden of proving the facts is on the Council, that a Registrant is not required to prove anything and that a fact alleged is only to be found proven if the Panel is satisfied on the balance of probabilities that it is correct.

13. In reaching its decision, the Panel had careful regard to all the evidence put before it and to the submissions of Mr Ferson on behalf of the HCPC and to the submissions of Mr Desai on the Registrant’s behalf.

14. The documentary evidence before the Panel included:
• Written statements produced for these proceedings by Colleague X, Colleague A and Mr J, the employer’s Investigating Officer in this matter;
• A written statement produced by Colleague Y for the employer’s investigation and the notes of Colleague Y’s investigatory interview;
• The HCPC Referral Form submitted by Colleague A, dated 17 June 2016;
• The employer’s Investigatory Report dated 23 August 2016;
• The employer’s Investigatory Report Terms of Reference;
• The Investigatory Interviews with relevant parties, including the Registrant;
• Reports from Information Governance regarding access to the records of Colleagues A, X and Y;
• The Trust’s Disciplinary Policy & Procedure;
• The Trust’s Information Governance Policy;
• The Trust’s Computer Misuse Policy;
• The Trust’s Data Protection Policy;
• The Trust’s Confidentiality Code of Conduct;
• Four character references submitted by the Registrant;
• The Registrant’s written statement.

15. The Panel heard oral evidence from Mr J, a registered Occupational Therapist, who conducted the employer’s investigation into the matters alleged. The Panel found Mr J to be a clear and reliable witness.

16. The Panel heard oral evidence from the Registrant. It did not find the Registrant’s evidence to be credible or reliable and found inconsistencies between his written submissions and oral evidence.

17. The Panel accepted the advice of the Legal Assessor.

Particular 1 - found proved
On or around 5 February 2016 you attempted to search the confidential medical RIO records of Colleague Y on several occasions;
18. The Panel had careful regard to the note of Colleague X’s investigatory interview. In this, Colleague X stated that after the Registrant had informed her that he had accessed Colleague A’s medical RIO records he told her that no one monitors RIO and that he had looked at everyone. The Panel noted that this account was repeated in Colleague X’s statement prepared for these proceedings.

19. Mr J told the Panel that he obtained a report from Information Governance which stated that the RIO records showed the Registrant had made 24 attempts to access the records of Colleague Y.

20. The Panel had sight of the report from Information Governance and noted that the records did show the Registrant had made 24 attempts to access Colleague Y’s records.

21. Mr J told the Panel that the Registrant would have been aware of Trust policies which prohibited unauthorised access of medical records on the RIO system as this would have formed a part of his induction and ongoing training. His Information Governance training was up to date at the time of the allegations.

22. The Registrant told the Panel that he had been aware that it was wrong to access the confidential records of colleagues. He accepted that he had acted as alleged.

Particular 2 - found proved
On or around 8 April 2016, you accessed and viewed the confidential medical RIO records of Colleague A on two separate occasions;
23. The Panel had careful regard to the witness statement of Colleague X produced for the purposes of these proceedings and to the notes of her investigatory interview. In both, Colleague X stated that the Registrant had informed her that he had accessed the medical RIO records of  Colleague A.

24. The Panel had careful regard to the statement of Colleague Y produced for the employer’s investigation and also to the note of her investigatory interview. In both, Colleague Y stated that the Registrant had informed her that he had accessed the medical RIO records of  Colleague A.

25. Mr J told the Panel that he obtained a report from Information Governance which stated that the RIO records showed the Registrant had searched the records of Colleague A.

26. The Panel had before it the report from Information Governance which indicated that the Registrant had accessed Colleague A’s records on two occasions on 8 April 2016.

27. The Panel had in mind Mr J’s evidence that the Registrant would have been aware of Trust policies which prohibited unauthorised access of medical records on the RIO system as this would have formed a part of his induction and ongoing training. His Information Governance training was up to date at the time of the allegations.

28. The Panel noted that during the course of the Registrant’s 12 July 2016 investigatory interview, the Registrant admitted accessing Colleague A’s records. However, he said that he had done so by accident and that he had not told anyone. The Registrant said that he did not know how colleagues had become aware of this.

29. The Panel noted that during the course of the Registrant’s second investigatory interview on 2 August 2016 he suggested that he might have accessed colleagues’ records accidentally. He denied deliberately searching RIO for colleagues’ records.

30. The Panel noted that in the Registrant’s written amendments to his investigatory interviews he said that he was not sure if he had accessed Colleague A’s notes twice, but he accepted that he might have done so. The Registrant said he had been distressed by his error and that, in response to a question from Colleague X as to why he appeared distressed, he may have told her that he had accessed Colleague A’s records.

31. The Registrant told the Panel that his initial accessing of Colleague A’s records  had been accidental. He said when he realised it was Colleague A’s record he kept reading out of curiosity. He said it was curiosity which led him to access Colleague A’s records a second time. He admitted that he had acted as alleged.

Particular 3 - found proved
Between approximately 8 April 2016 and 15 April 2016, you shared confidential and personal information about Colleague A with Colleague X and/or Colleague Y;
32. In her written statement for these proceedings, Colleague X stated: “He told me that he had accessed Colleague A’s records, as well as telling me details of what he had read.”

33. The Panel noted that in the course of their investigatory interviews, both Colleague X and Colleague Y had stated that the Registrant had told them the details of what he had read in Colleague A’s confidential records.

34. In his written statement for these proceedings, Mr J stated: “This was information of the sort that only someone who had seen the confidential records would have had.”

35. The Registrant accepted that he had acted as alleged.

Particular 4 - found proved
On or around 20 May 2015, you accessed and viewed the confidential medical RIO records of Colleague X ;
36. In her written statement for these proceedings, Colleague X stated: “Foysol Baree told me that he had accessed both my and Colleague A’s medical records” and that he told her “I’ve looked you all up.”

37. The Panel had before it the report from Information Governance which indicated that the Registrant had accessed Colleague X’s records on a single occasion on 20 May 2015.

38. The Panel noted that in the course of the Registrant’s Investigatory Interview on  2 August 2016 he said he did not recall accessing Colleague X’s records.

39. In his evidence to the Panel, the Registrant accepted that he had acted as alleged.

Particular 5 - found proved
Between April and June 2016, you made inappropriate and / or offensive comments to and/or about Colleague A, including ‘you are a fat bastard, you are 42 and still live with your mum’, or words to that effect.
40. In her written statement produced for these proceedings, Colleague X stated: “In April 2016 Foysol Baree told me that he had accessed both my and Colleague A’s medical records…He told me that he had accessed Colleague A’s records, as well as telling me details of what he had read. I said to him ‘you do realise that you could get the sack because it is actually illegal.’; he responded by saying ‘don’t be silly, they don’t check…I’ve looked you all up.’ … I was really shocked by this as he had read confidential information that he should not have. He was already bullying Colleague A and I feared that he now had more information to throw at him. Foysol Baree used to put Colleague A down a lot … I do recall him saying ‘you are a fat bastard, you are 42 and still live with your mum’; that was one of his favourite things to say to Colleague A…I have been asked if they [sic] things that Foysol Baree was saying was simply banter between friends. It was not banter as Colleague A would get upset. When I told Foysol Baree that it was upsetting Colleague A, he would assure me that he would stop being horrible and stop for a period of time, but then would start up again. It was horrible.”

41. In his written statement for these proceedings Colleague A wrote: “Foysol Baree did say to me that I was ‘a fat bastard’ and that I was 42 and still lived with my mum…I did speak with Colleague X…in relation to the comments…”

42. The Registrant denied that he had spoken to Colleague A as alleged. However, he also told the Panel that “there was inappropriate banter between us. He would call me dark I would call him fat. It was just banter.” On the occasion in question, the Registrant said he had been upset by comments Colleague A had made to him and had responded to these by asking “How would you like it if I called you a fat bastard and said you are in your forties and live with your mum and haven’t got a partner?”

43. The Panel approached the evidence of Colleagues X and A with considerable caution as it recognised that, while the Registrant had been exposed to cross examination, their accounts of this matter had not. For this reason the Panel gave less weight to their evidence than it might otherwise have done. However, the Panel did find the hearsay evidence to be consistent. It did not find the Registrant’s account of the incident to be credible. By his own admission, his relationship with Colleague A had been characterised by ongoing, inappropriate and offensive “banter”. It was clear from the evidence of the Registrant’s colleagues and the Registrant that this was not always good natured. The Panel took the view that the Registrant’s banter would, on occasions upset Colleague A. The Panel noted that by the Registrant’s own account, Colleague X had remonstrated with him about his treatment of Colleague A on more than one occasion. For all the reasons set out above, the Panel concluded that it was more likely than not that the Registrant acted as alleged.

Decision on grounds
44. The Panel had careful regard to the submissions of Mr Ferson and the representations of Mr Baree. It accepted the advice of the Legal Assessor.

45. Mr Ferson referred the Panel to the Privy Council case of Roylance v GMC (No2) [2000] 1 AC 311 in which Lord Clyde stated:
misconduct is a word of general effect, involving some 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 in the particular circumstances.”

46. Mr Ferson submitted that the Registrant had fallen well below the standards expected of an Occupational Therapist in that the Registrant had breached Standards 2, 5 and 9 of the HCPC’s ‘Standards of conduct, performance and ethics’ and Standards 7 and 9 of the ‘Standards of Proficiency for Occupational Therapist’ as well as the Trust’s Disciplinary Policy, its Information Governance Policy, its Computer Misuse Policy, its Data Protection Policy and its Confidentiality Code of Conduct.

47. The Panel bore in mind that not every breach of the Standards and not every falling short of what would be proper in the circumstances will constitute misconduct; the breach must be serious, or as Elias LJ put it in R (on the Application of Remedy UK Ltd) v GMC [2010] EWHC 1245 (Admin) “sufficiently serious.... that it can properly be described as misconduct going to fitness to practise.”

48. The Panel found that the Registrant was in clear breach of the following HCPC’s ‘Standards of conduct, performance and ethics’, 2016 edition in relation to Particulars 1,2,3 and 5:
5.1 You must treat information about service users as confidential.
5.2 You must only disclose confidential information if you have permission
9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.

49. The Panel found that the Registrant was in clear breach of the following HCPC ‘Standards of conduct, performance and ethics’, 2012 edition in relation to Particular 4:
2 You must respect the confidentiality of service users
3 You must have high standards of personal conduct
13 You must…make sure that your behaviour does not damage the public’s confidence in you or the profession.

50. The Panel found that the Registrant was in clear breach of the following HCPC ‘Standards of Proficiency, Occupational Therapists’, 2013:
9.2 understand the need to build and sustain professional relationships as both an independent practitioner and collaboratively as a member of a team
2.1 understand the need to act in the best interests of service users at all times
2.2 understand what is required of them by the Health and Care Professions Council
2.3 understand the need to respect and uphold the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing
3.1 understand the need to maintain high standards of personal and professional conduct
4.4 recognise that they are personally responsible for and must be able to justify their decisions
7.1 be aware of the limits of the concept of confidentiality
7.2 understand the principles of information governance and be aware of the safe and effective use of health and social care information.

51. The Panel considered that the Registrant’s actions compromised the confidentiality of the RIO record system and breached the individual confidentiality of those colleagues whose records he accessed. The seriousness of his actions was compounded by its duration, the number of records involved, his persistence in seeking to access colleagues’ records, and also by his disclosure to colleagues of what he had learned from the records of Colleague A. Further, his inappropriate and offensive comments in relation to Colleague A had no place in a professional workplace under any circumstances.

52. In the Panel’s view, the Registrant’s conduct fell well short of what would have been proper in the circumstances. His actions would undermine public confidence in the security and confidentiality of sensitive information held by the Trust and in the trustworthiness of the profession. The public rightly expects that information pertaining to service users and their families will be kept secure and confidential and that registered Occupational Therapists will behave in a professional manner in their dealings with colleagues. In breaching the confidentiality of the RIO system and in undermining public trust and confidence, the Registrant’s actions were so serious as to call into question his fitness to practise as a registered Occupational Therapist.

53. For all the reasons set out above, the Panel had no doubt that his actions demonstrated a falling short so serious as to constitute misconduct going to fitness to practise.

Decision on impairment
54. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of his misconduct. It had careful regard to all the evidence before it and to the submissions of Mr Ferson and  Mr Desai.

55. The Panel accepted the advice of the Legal Assessor and had careful regard to the HCPTS Practice Note on ‘Finding that Fitness to Practise is Impaired’.

56. The Panel considered that the Registrant’s misconduct had put at unwarranted risk of harm those whose records he had accessed, and that he had breached fundamental tenets of the profession and brought the profession into disrepute.

57. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now and in the future, to repeat misconduct of the kind found proved. In reaching its decision, the Panel had particular regard to the issues of insight, remediation and his  history.

58. The Panel noted that in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin) Mrs Justice Cox stated:
When considering whether or not fitness to practise is currently impaired, the level of insight shown by the practitioner is central to a proper determination of that issue.” 

59. The Registrant admitted Particulars 1-4 and told the Panel that there was no excuse for his actions, before putting forward excuses for those actions. He denied the suggestion that he had accessed colleagues’ confidential records for the purpose of finding information he could use against them. However, after the collapse of his explanations of accident or error, he seemed unwilling or unable to offer an explanation for his actions beyond telling the Panel that he had been “curious”.

60. The Panel found the Registrant’s explanations lacked credibility and considered Mr Ferson’s suggestion that he had been motivated by a desire to find information he could use against colleagues was more likely to be correct than not.

61. The Panel accepted the Registrant’s evidence that he knew it was wrong to access confidential records without a legitimate professional reason for doing so, but it heard nothing from him that would enable it to conclude that he would have any meaningful understanding of why it was wrong to do so, or of why it was wrong for him to disclose to others what he had learned from the records.

62. The Registrant has admitted Particulars 1-4, but in the Panel’s view he does not appear to appreciate the gravity of what he has done, not only in relation to the impact of his actions on his colleagues, especially Colleague A, but also the impact on the Trust and on the public’s confidence in the Trust and in the profession. An illustration of this is the ten page written submission of the Registrant which focusses on the behaviour of colleagues and dysfunctional team dynamics at the time of the allegation, rather than addressing his accessing of colleague’s records. The Panel finds this to be in marked contrast to the Registrant’s claims that he is an empathetic individual. In the Panel’s view, he has demonstrated only limited insight into his misconduct.

63. The Panel had careful regard to Silber J’s guidance in Cohen v GMC [2008] EWHC 581 (Admin) that Panels should take account of:
• Whether the conduct which led to the charge is easily remediable;
• Whether it has been remedied; and
• Whether it is highly unlikely to be repeated.

64. The Panel recognised that remediation of misconduct which involves the sort of attitudinal failings demonstrated by the Registrant may not be easy. However, it considered that a good starting point would have been evidence of effective reflection. The Registrant told the Panel that he had reflected on his failings and that he had taken “a long and hard look at myself.” The Registrant said “I may have had a problem with boundaries at the time, but I have learned from my mistakes.” In the Panel’s view, describing as “a problem with boundaries” the Registrant’s systematic efforts to access the confidential records of his colleagues and then disclosing to colleagues highly sensitive personal information, is indicative of the considerable difficulty he faces in remediating his misconduct and of his lack of progress to date.

65. The Panel had careful regard to the Registrant’s history. It noted that he is a registered Occupational Therapist of considerable experience, that he has never previously been referred to his regulator and that there has been no suggestion that he lacked clinical competence. It further noted that he has been working as a registered Occupational Therapist for well over a year since the incidents in issue and that there has been no further allegation of misconduct. Nevertheless, the Panel is unable to treat this as an isolated incident. The Registrant’s unauthorised accessing of confidential information occurred over a substantial period of time and in relation to more than one colleague. As such, it demonstrated a pattern of behaviour. Similarly, the offensive and inappropriate comments relating to Colleague A do not appear to have been an isolated lapse. By his own admission, the Registrant’s “banter” was a regular occurrence and involved insulting and offensive comments which were repeated over a significant period of time.

66. The Registrant told the Panel that he had learned from this experience and would never repeat misconduct of this kind. In considering the risk of repetition, the Panel had careful regard to its conclusions in relation to his insight, remediation, and history. In the absence of meaningful insight and remediation the Panel was unable to conclude that he was not liable to repeat misconduct of this kind. For this reason, the Panel concluded that his fitness to practise is impaired on the grounds of public protection.

67. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said:
Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.

68. The Panel asked itself whether the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment of fitness to practise was not made in the circumstances of this case. The Panel had no doubt that it would. Maintaining confidentiality is a fundamental requirement of the profession of Occupational Therapists. Informed members of the public would be shocked to learn that the Registrant had repeatedly accessed confidential records without legitimate professional reason, and he had then shared highly sensitive medical information about one colleague with other colleagues. Those members of the public would also be concerned to learn of his apparently regular use of inappropriate, offensive and unprofessional "banter" in the professional setting of his workplace. For these reasons, a finding of impairment on public interest grounds is required.

69. For all the reasons set out above the Panel concluded that the Registrant’s fitness to practise is impaired by reason of his misconduct and therefore the Allegation is well founded.

Decision on Sanction
70. The Panel next considered what, if any, sanction to impose on the Registrant’s registration.

71. The Panel had careful regard to all the evidence put before it, and also to the submissions of Mr Ferson, Mr Desai and the Registrant.

72. Mr Ferson drew the Panel’s attention to the HCPC’s Indicative Sanctions Policy and submitted that the question of sanction is a matter for the Panel’s own independent judgment.

73. Both Mr Desai and the Registrant addressed the Panel. They said that the Registrant had considered the Panel’s determination on facts, grounds and misconduct. They said they had come to the hearing for justice and fairness and that the Registrant had repeatedly acknowledged that there had been no excuse for his actions, albeit that it took place in what he regarded as a dysfunctional team. Further, he had expressed his remorse and informed the Panel that he had learned from his mistakes and had “moved on”. They said that in these circumstances they were at a loss as to what more was expected of the Registrant.

74. The Registrant told the Panel that he was willing to accept conditions and to undertake any course the Panel deemed appropriate. He said he is a good and competent Occupational Therapist and he does not wish to be suspended or struck off the Register.

75. The Panel accepted the advice of the Legal Assessor.

76. In reaching its decision, the Panel had at the forefront of its thinking the principle of proportionality and the need to balance the interests of the Registrant with the protection of the public and the wider public interest in maintaining confidence in the profession and the HCPC, and in declaring and upholding proper standards of conduct and performance.

77. The Panel had in mind that the purpose of sanctions is not to be punitive, though they may have a punitive effect. The Panel considered all the options open to it, starting with the least restrictive and working up the scale.

78. In reaching its decision, the Panel had regard to all the circumstances, including the following mitigating and aggravating features of the case:

Mitigating
• The misconduct occurred in the setting of a long career as a registered Occupational Therapist, during which time the Registrant had never been referred to his regulator;
• The misconduct was not related to the Registrant’s patients;
• The Registrant has engaged with the regulatory process, admitted most of the matters subsequently found proved and has expressed remorse for his misconduct;
• The Registrant has worked as a Registered Occupational Therapist for 14 months since the matters which brought him before his regulator and there has been no further allegation of misconduct.

Aggravating
• The Registrant abused his power to access records on the RIO system, and in doing so abused the trust placed in him as a Registered Occupational Therapist;
• The Registrant attempted to cover up his wrongdoing by giving untruthful answers in his Investigatory Interviews;
• The misconduct breached the fundamental requirement of Occupational Therapists that they respect confidentiality and has brought the profession into disrepute.
• The misconduct put service users at unwarranted risk of harm;
• The seriousness of the misconduct was compounded by its duration, the number of records involved, the Registrant’s persistence in seeking to access colleagues’ records and by his disclosure of what he had learned from the highly sensitive medical records of Colleague A;
• The Registrant has demonstrated a lack of meaningful insight into the impact of his misconduct on his colleagues, especially Colleague A, on the reputation of his employers and the profession and on the confidence of the public; 
• The Registrant has demonstrated a lack of meaningful remediation;

79. The Panel first considered whether it would be appropriate to impose no sanction in this case. It gave careful consideration to Paragraph 8 of the Indicative Sanctions Policy. The Panel recognised that taking no action after a finding of impairment is likely to be an exceptional outcome, but may be appropriate in cases where impairment has been found on public interest grounds alone and where the Registrant has demonstrated insight and remediation. In this case the Panel found impairment of fitness to practise on public protection and public interest grounds, and concluded that the Registrant had demonstrated little meaningful insight or remediation. Taking no action would neither protect against the risk of repetition nor serve the public interest in maintaining confidence in the profession and the regulatory process and declaring and upholding proper standards.

80. The Panel then considered whether it would be appropriate to refer the matter for mediation. It had careful regard to Paragraphs 26 and 27 of the Indicative Sanctions Policy. It noted that mediation may only be used if the Panel is satisfied that the only other appropriate course would be to take no further action. This is not such a case.

81. The Panel next considered the imposition of a Caution Order. It had careful regard to the factors set out in Paragraphs 28 and 29 of the Indicative Sanctions Policy and noted that such an order would be appropriate where the lapse is isolated, relatively minor in nature, there is a low risk of recurrence and the Registrant has shown insight and taken appropriate remedial action. The Panel was unable to conclude that any of these elements were present in this case. Such an order would not protect the public. Further, the seriousness of the misconduct demands that it be marked by an appropriate sanction in order to send a clear message to Occupational Therapists and the public that such conduct is unacceptable and must not be repeated.

82. The Panel next considered the imposition of a Conditions of Practice Order. It had regard to Paragraphs 30 - 38 of the Indicative Sanctions Policy. The Panel gave careful consideration as to whether this may be a case where conditions could be formulated which would protect the public and the public interest while providing the framework necessary to enable the Registrant to take steps in a structured setting to develop his insight into his failings and to remediate those failings. The Panel was unable to formulate realistic and workable conditions which would adequately protect the public. It considered that even if this had been possible, the seriousness of the Registrant’s misconduct was such that a Conditions of Practice Order would be insufficient to properly mark its unacceptability and would not maintain confidence in the profession or the regulatory process.

83. The Panel next considered whether a Suspension Order might be  an appropriate and sufficient response to its findings in this case. It had careful regard to Paragraphs 39-45 of the Indicative Sanctions Policy. It noted that such an order should be considered where the misconduct is of a serious nature but unlikely to be repeated. The Panel considered that the misconduct is at the high end of the spectrum of seriousness and is not unlikely to be repeated, especially in light of the Registrant’s lack of insight and remediation.

84. The Panel noted that if the evidence suggests that the Registrant will be unable to resolve or remedy his failings then striking off may be the more appropriate option. The Panel considered that the submissions made by and on behalf of the Registrant at sanctions stage demonstrated an entrenched lack of insight into his failings. He made plain that, having expressed his remorse and embarrassment and having repeatedly stated that he accepted that his conduct had been wrong, it was his view that he had demonstrated appropriate insight, and he had now “moved on”. In light of his clearly expressed attitude, the Panel concluded that imposing a period of suspension in order to allow the Registrant a further opportunity to develop proper insight would serve no useful purpose. Further, imposing a Suspension Order in these circumstances would undermine public confidence in the regulatory process.

85. For all the reasons set out above the Panel concluded that, while a Suspension Order would protect the public while it was in force, it would not adequately reflect the seriousness and unacceptability of the Registrant’s misconduct.

86. In considering whether a Striking Off Order might be appropriate, the Panel had careful regard to Paragraphs 46-50 of the Indicative Sanctions Policy. It concluded that the nature and gravity of the Registrant’s misconduct was such that any lesser sanction would undermine public confidence in the profession and in the regulatory process.

87. The Registrant’s misconduct struck at the heart of the requirement that all health care professionals, including Occupational Therapists, maintain confidentiality at all times. In the Panel’s view, his systematic accessing of colleagues’ confidential records for his own purposes and his subsequent disclosing of highly sensitive medical information in respect of one of those colleagues was incompatible with his continuing on the Register. In those circumstances, the Panel concluded that a Striking Off Order was the only appropriate and proportionate sanction available to it.

Order

That the Registrar is directed to strike the name of Mr Foysol Baree from the Register on the date this order comes into effect.

Notes

The order imposed today will apply from 9 May 2018.

Hearing History

History of Hearings for Foysol Baree

Date Panel Hearing type Outcomes / Status
09/04/2018 Conduct and Competence Committee Final Hearing Struck off