Mr Gary C Elliott

Profession: Dietitian

Registration Number: DT07625

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 09/08/2018 End: 11:30 09/08/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

(The following allegation was considered by a Panel of the Conduct and Competence Committee at the substantive hearing on that concluded on 2 August 2017)

 

While working at the Bridgewater Community Healthcare NHS Trust as an agency registered Dietitian between September 2011 and December 2013:

 

1. In relation to Patient 1, you:

 

a) Inappropriately recommended Patient 1 to:

 

i. Follow a low carbohydrate diet;
ii. Stop taking insulin.

 

b) Did not keep adequate records, in that you recorded:

 

i. Inadequate assessment details in the clinical notes;
ii. Insufficient clinical details to formulate a management plan.

 

2. In relation to Patient 2, you:

 

a) You did not inform Patient 2’s GP practice and/or record informing the practice of the recommendation that Patient 2 should change the level of Gliclazide they were taking;

 

b) Did not keep adequate records.

 

3. In relation to Patient 3, you:

 

a) Inappropriately advised Patient 3 to:

 

i. Follow a very low carbohydrate/energy diet, using meal
replacement drinks;
ii. Stop taking Gliclazide.

 

b) Did not record a timeframe for the advice given at particular 3(a)i.

 

4. In relation to Patient 4, you did not keep adequate records in that you did not record:

 

a) An assessment of subjective and objective information;

 

b) A clinical rationale;

 

c) A dietetic planned intervention;

 

 

d) Sufficient details of review appointments.

 

5. In relation to Patient 5:

 

a) You did not keep adequate records, in that you did not record details of attendances with the patient on:

 

i. 18 April 2012;
ii. 11 October 2013.

 

b) On 20 December 2012, you:

 

i. Inappropriately recommended adjusting Patient 5’s insulin.

 

6. In relation to Patient 6, you:

 

a) Inappropriately advised Patient 6 on 19 July 2013 to take fish oil to help pain control;

 

b) Did not refer and/or record referring Patient 6 to another clinician for treatment of their pain.

 

7. In relation to Patient 7, you:

 

a) Did not adequately complete the initial assessment template in that there is:

 

i. Inadequate diet history;
ii. Inadequate care plan.

 

b) You demonstrated poor clinical reasoning in that you discharged Patient 7 when it was not appropriate to do so.

 

8. In relation to Patient 9, you demonstrated poor clinical reasoning in discharging Patient 9 when it was not appropriate to do so in that:

 

a) Their diabetes education was not completed;

 

b)  You did not provide and/or record providing advice in respect of:

 

i. Carbohydrate control;
ii. Insulin adjustment.

 

9. In relation to Patient 10, you:

 

a) Inappropriately recommended to Patient 10 to:

 

i. Have an occasional carbohydrate free meal;
ii. Use the full insulin dose.

 

While working as a registered Dietitian at Burn Brae Medical Group between February 2014 and March 2015;

 

10. In relation to Patient 11, on 26 February 2014 and/or 26 March 2014 you:

 

a) Did not monitor and/or record monitoring weight;

 

b) Gave inappropriate advice:

 

i. Regarding food allergies;
ii. To avoid soya and/or dairy

 

c) Recorded a diagnosis of irritable bowel syndrome, when this condition had not been diagnosed by a doctor.

 

11. In relation to Patient 12, between 28 January 2014 and 25 March 2015 you:

 

a) Gave inappropriate advice to follow a 5:2 diet and/or intermittent fasting;

 

b) Indicated Patient 12 had a possible food allergy and/or that an elimination diet should be considered when there was no clinical indication for this.

 

12. In relation to Patient 13, between March 2014 and May 2014 you:

 

a) Did not:

 

i. Review and/or record reviewing food intake;
ii. Advise and/or record advising on alternative foods to replace
those being recommended for exclusion;
iii. Monitor and/or record monitoring weight.

 

b) Indicated Patient 13 had a gluten sensitivity and/or recommended a gluten-free diet when there was no clinical indication for this.

 

13. In relation to Patient 14, between April 2014 and July 2014 you:

 

a) Gave inappropriate advice:

 

i. to follow a prescriptive low sugar diet;
ii. to avoid grains.

 

b) Indicated that:

 

i. The weight problems might be caused by anxiety and/or stress hormones and/or cortisol, when there was no clinical indication for this;

 

ii. Patient 14 had irritable bowel syndrome, when there was no
diagnosis for this condition.

 

14. In relation to Patient 15, on 9 April 2014 and/or 27 August 2014 you:

 

a) Did not:

 

i. Review and/or record reviewing food intake;
ii. Advise and/or record advising on alternative foods to replace
those being recommended for exclusion.
iii. Monitor and/or record monitoring weight.

 

b) Gave inappropriate advice:

 

i. To consume a probiotic;
ii. To follow a gluten free diet.

 

b) Indicated Patient 15 had:

 

i. Food intolerance and/or gluten sensitivity and/or cow’s milk
protein allergy when there was no clinical indication for this;
ii. brain fog, which is not a registered medical condition.

15. In relation to Patient 16, between April 2014 and August 2014 you:

 

a) Gave inappropriate advice:

 

i. to not do any intense physical activity;
ii. to follow a low carbohydrate and/or calorie restricted diet and/or use meal replacement drinks;
iii. to have occasional carbohydrate free meals.

 

b) Indicated that:

 

i. Patient 16 had hypoglycaemia, when there was no diagnosis
and/or clinical indication for this;
ii. Patient 16’s lack of weight loss suggested ‘fasting insulin still
too high’, which was inappropriate;
iii. Patient 16’s ‘metabolism now oxidising fats well and in “fat
adapted state”, which was inappropriate;
iv. An occasional carbohydrate-free meal will ‘keep insulin from
getting out of control again’, which was inappropriate.

 

16. In relation to Patient 17, between April 2014 and August 2014 you:

 

a) Gave inappropriate advice;

 

i. (removed by amendment)
ii. To follow a low carbohydrate diet;
iii. To increase sodium and/or salt intake;

 

17. In relation to Patient 18, between February 2014 and August 2014 you:

 

a) Did not:

 

i. Advise and/or record advising on alternative foods to replace
those being recommended for exclusion;
ii. Assess and/or record assessing the diet to ensure it was
 nutritionally sound;
iii. Monitor and/or record monitoring weight;

 

b) Gave inappropriate advice;

 

i. To follow a gluten free diet;
ii. To follow a dairy free diet;

 

c) Indicated that Patient 18 had brain fog, which is not a recognised medical condition.

 

18. In relation to Patient 19, on 7 May 2014 you:

 

a) Inappropriately recorded that:

 

i. Patient 19 had ‘possible problems from gut disbiosis [sic] to
potential for serious food allergies’, when there was no clinical
indication and/or diagnoses for these conditions;

ii. Patient 19’s gut inflammation was partly caused by ‘suspected gluten sensitivity with possible cross reaction to dairy,’ when these are not recognised risk factors or causes;

 

19. In relation to Patient 20, on 12 March 2014 and/or 7 May 2014 you:

 

a) Did not assess and/or record assessing:

 

i. Diet;
ii. Lifestyle.

 

b) Did not provide and/or record providing Patient 20 with any first line dietary advice;

 

c) Gave inappropriate advice to consume a probiotic.

 

20. In relation to Patient 21, on 21 May 2014 and/or 18 June 2014 you:

 

a) Did not advise and/or record advising on alternative foods to replace those being recommended for exclusion;

 

b) Gave inappropriate advice to follow a gluten free diet;

 

c) Gave inappropriate advice that failing to follow a gluten-free diet would cause immune cascade and inflammation;

 

d) Indicated Patient 21 had:

 

i. Irritable bowel syndrome, when there was no diagnosis for this
condition;
ii. Brain fog, which is not a recognised medical condition.

 

21. In relation to Patient 22, on 24 September 2014 you:

 

a) Did not assess and/or record assessing:

 

i. Dietary intake;
ii. Weight;
iii. Weight trend;

 

b) Did not advise and/or record advising on alternative foods to replace those being recommended for exclusion;

 

c) Gave inappropriate advice to follow a gluten free diet;

 

d) Indicated that Patient 22 had ‘markers of brain inflammation
(anxiety/depression/brain fog)’; which was inappropriate.

 

22. The matters set out in paragraphs 1-21 constitute misconduct and/or lack of competence.

 

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

 

Facts proved:

1a(i), 1b(i), 1b(ii), 2a, 2b, 3a(i), 3b, 4a, 4b, 4d, 6b,7a(i),7a(ii),
7b, 8b(ii) in part, 10a, 10b(i), 10b(ii), 10c, 11a, 11b, 12a(i) in
part, 12a(ii) in part, 12a(iii), 12b, 12c, 14a(i) in part, 14a(ii) in
part, 14a(iii), 14b(i), 14b(ii) in part, 14c(ii) in part, 15a(ii),
15a(iii), 15b(i), 15b(ii), 15b(iii), 15b(iv),17a(i) in part, 17a(ii)
in part, 17a(iii), 17b(i), 17b(ii), 17c, 18a(i), 18a(ii), 19a(i),
19a(ii), 19b, 19c, 20a in part, 20b, 20c, 20d(i), 20d(ii) in part,
21a(i) in part, 21a(ii) in part, 21a(iii), 21b in part and 21d.

 

Facts not proved:

1a(ii), 3a(ii), 4c, 5a(i), 5a(ii), 5b, 6a, 8a, 8b(i), 9a (i), 9a (ii),
13a(i), 13a(ii), 13b(i), 13b(ii), 14c(i), 15a(i), 16a(ii),
16a(iii) and 21c.

 

Grounds: Misconduct

 

Fitness to practise impaired: Yes

 

Sanction: Suspension for 12 months

 

Finding

Preliminary matters

Proof of Service

1. On 13 July 2018, the HCPC sent the notice of this hearing by first class post to the Registrant’s registered address. A copy of the notice was also sent to the Registrant by email and contained the required particulars. On 23 July 2018, the Registrant had emailed the HCPC to inform it that he did not intend to attend the August 2018 hearing.

2. The Panel heard and accepted the advice of the Legal Assessor. The Panel was mindful that there had not been strict service in accordance with the Rules, in that the notice had not been sent out the full 28 days before the hearing. However, the Panel had regard to the purpose of service, namely whether the Registrant had been provided with the means of knowledge as to when and where his hearing is to take place, so that he can attend and/or be legally represented and whether he has had sufficient advance warning to be able to attend the hearing, prepare for it, and instruct a legal representative should he wish to do so. In all the circumstances, including that the Registrant had informed the HCPC that he would not be attending, the Panel was satisfied that there had been good service of the notice.


Proceeding in the absence of the Registrant

3. Ms Knight, on behalf of the HCPC, applied for the hearing to proceed in the Registrant’s absence. The Panel heard and accepted the advice of the Legal Assessor, who advised that the discretion to proceed in a Registrant's absence should only be exercised with the utmost care and caution.

4. The Panel noted that the Registrant had not engaged in the substantive hearing. His email of 23 July 2018 informed the Panel that he would not be attending this substantive Order review hearing. It follows that the Registrant has not applied for an adjournment, nor has he submitted any representations for this substantive Order hearing review.

5. In light of the Registrant’s email dated 23 July 2018, the Panel was satisfied that the Registrant was aware of the hearing and had chosen not to attend. Given that it had found that there had been good service of the notice, the Panel concluded that the Registrant had voluntarily waived his right to attend and there was no evidence that he would attend an adjourned hearing. The Panel also considered that it was in the public interest for the hearing to take place, as this was a statutory review of a substantive Order due to expire on 29 August 2018.

Background

6. The Registrant was registered with the HCPC as a Dietitian. He was employed by Bridgewater Community Healthcare NHS Trust (BCH Trust) as an agency Dietitian between September 2011 and December 2013. The Registrant was employed via the Maxxima Agency.

7. Concerns were raised in January 2014, by a subsequent Dietitian who had inherited the Registrant’s caseload. The concerns were raised in respect of a number of patients in relation to the clinical advice, recommendations and practice of the Registrant, as well as his record keeping. Concerns included advice given to patients about changes to their medication and diet.

8. A review of the Registrant’s caseload was conducted. There was an audit of 238 of the Registrant’s cases. No further internal proceedings took place as the Registrant had left the BCH Trust by the time these concerns came to light. The matter was reported to the HCPC by BCH Trust.

9. Subsequently, the Registrant began working at Northumbria Healthcare Community Trust (NHC Trust) as an agency Dietitian. His role included working within GP practices to provide diabetes care and a general dietetics service.  The Registrant worked as a locum Dietitian at the Burn Brae Medical Group, (‘Burn Brae’), in Hexham between January 2014 and March 2015.

10. After the Registrant left his employment with NHC Trust in March 2015, further concerns were raised with that Team Lead. She contacted the Practice Manager of Burn Brae in August 2015 and reviewed approximately 30 patient files.  She found areas of concern including the Registrant not recording advice given, creating diagnoses and non-proven physiological issues in records, giving inappropriate advice, preparing inadequate care plans and advice being given outside the accepted scope of practice of a Dietitian.

11. Between 26 June - 03 July 2017 and 31 July - 2 August 2017, a substantive hearing was held in relation to the alleged failures, as set out in the allegation. That substantive panel found facts proved in respect of a total of eighteen patients, eight of whom were at BCH Trust and ten of whom were at Burn Brae. The substantive panel found that the Registrant’s conduct was sufficiently serious as to amount to misconduct in relation to 13 patients overall.

12. The substantive panel concluded that standards 1, 6 and 10 had been breached, namely:-

• 1 – You must act in the best interests of service users;
• 6 – You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner.
• 10 – You must keep accurate records.

13. The substantive panel stated: ‘it is an integral part of the role of a Registered Dietitian to act within the scope of their practice and that all relevant assessments, monitoring and reviews are made, evidenced and properly justified. It is imperative that complete and accurate records are kept. In not doing so, continuity of care could not be ensured, and there was a potential for patients to be placed at risk of harm’.

14. The Registrant did not attend the substantive hearing. In advance of the substantive hearing, he had sent an email to the HCPC, dated 19 November 2016, stating that it was not his intention to practise as a Dietitian in the future. The substantive panel concluded that while the Registrant’s misconduct was potentially remediable, it had no evidence before it to demonstrate insight, remorse or remediation. As such, it could not be satisfied that there was not a real risk of repetition. The substantive panel concluded that the Registrant’s fitness to practise was impaired on both public protection and public interest grounds. The substantive panel imposed a Suspension Order for 12 months.

Decision

15. Ms Knight informed the Panel that after the substantive hearing, several letters had been sent to the Registrant seeking engagement by him. Letters were sent to him on 20. December 2017, 28 February 2018, 25 May 2018, and 16 July 2018, exploring whether he wished to be considered for voluntary removal from the Register. The only response received was the email dated 23 July 2018, indicating that he did not intend to practise as a Dietitian in the future.

16. Ms Knight outlined the information which the substantive panel had indicated may be of assistance to a future reviewing panel, but that no such information had been received. She submitted that there was no evidence before the Panel to indicate any insight, remorse or remediation. She submitted that consequently the Registrant’s fitness to practise remained impaired. She invited the Panel to consider whether a Striking Off Order was the appropriate Order.

17. The Panel heard and accepted the advice of the Legal Assessor. The Panel exercised its independent judgement in determining whether the Registrant’s fitness to practise remains impaired. It had regard to the HCPTS Practice Note on Impairment and the Indicative Sanctions Policy (the Policy).

18. The reviewing Panel had regard to the findings of the substantive panel, to the effect that the Registrant’s failures had been repeated, occurred over a lengthy period of time, and breached fundamental tenets of the profession. The Panel was of the view the Registrant had been given clear guidance by the previous panel to understand what information a future panel may wish to see in order to make assessments on insight and remediation. The Panel was concerned that there had been no engagement from the Registrant with his regulator since the substantive hearing, save for the email indicating his intention that he did not see himself returning to a “state registered role” in the future.

19. As a consequence, the Panel had no information before it to demonstrate that the Registrant had reflected on his failures, gained insight into them, or had remediated his practice. The Panel considered that it had no clearer understanding of the Registrant’s capabilities, or his insight into his failures one year on from the substantive Order being imposed. As such, this Panel was unable to evaluate the risk of repetition, and was unable to conclude anything other than that the risk of repetition remained.

20. Accordingly, the Panel is of the view that the risks identified at the substantive hearing remain and that the Registrant’s fitness to practise consequently remains impaired on the grounds of both public protection and the wider public interest in maintaining public confidence in the profession and declaring and upholding proper standards of conduct and professionalism.

21. In relation to sanction, it was the Panel’s view, that a sanction was required which would address the critically important public policy issues of protecting patients as well as the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour. The Panel therefore concluded that the options of taking no further action or imposing a Caution Order would not achieve this.

22. In respect of a Conditions of Practice Order, the Panel agreed with the views of the substantive panel, that in the absence of evidence of engagement, the Panel could not formulate workable, practicable or proportionate conditions, nor was it confident that the Registrant would be either willing or able to cooperate with such an Order.

23. In respect of a Suspension Order, the Panel was of the view that it had no information before it to indicate that the Registrant was in a position to remedy his practice, or was inclined to do so. The Panel noted that in the Registrant’s email of 23 July 2018, he said that he took an interest in keeping up to date with current research and regularly read relevant literature. However, the Panel did not consider that this went any way to reassure it that the Registrant had reflected upon or acknowledged his failures at BCH Trust or Burn Brae, or that he had sought to address the specific areas of his misconduct identified by the previous panel. As a result it had earlier concluded that it was unable to rule out the risk of repetition, with the consequent risk to patients and damage to the reputation of the profession.

24. The Panel noted that the substantive panel had considered that a Striking Off Order would be disproportionate at that time. However, a further 12 months had elapsed, and the Registrant had taken no steps in that time to engage meaningfully with his Regulator or these proceedings. The Panel had no information before it to indicate that position would change if it were to impose a further Suspension Order.

25. The Panel had regard to paragraph 48 of the Policy which states: ‘Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate.’ The Panel considered that this was the position in relation to the Registrant, given his persistent lack of meaningful engagement with the Regulator.

26. In all the circumstances, the Panel concluded that the only appropriate and proportionate response was to impose a Striking-Off Order.

Order

Order:


The Registrar is directed to strike the name of Mr Gary C Elliott from the Register upon the expiry of the current Order.

Notes

The order imposed today will apply from 30 August 2018.

Hearing History

History of Hearings for Mr Gary C Elliott

Date Panel Hearing type Outcomes / Status
09/08/2018 Conduct and Competence Committee Review Hearing Struck off
31/07/2017 Conduct and Competence Committee Final Hearing Suspended