Alexandra Claire Burns

Profession: Physiotherapist

Registration Number: PH70215

Interim Order: Imposed on 25 Nov 2016

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 20/08/2018 End: 16:00 21/08/2018

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(As amended at the Final Hearing on 20-21 August 2018)


While registered as a Physiotherapist with the Health and Care Professions Council:

1. You were unable to undertake your professional duties as you were under the influence of alcohol, on the following dates:

a) On 4 December 2015, at Milton Keynes University Hospital.

b) On 22 January 2016, at Peterborough City Hospital.

c) On 4 October 2016, at Kettering General Hospital.

2. The matters set out in paragraph 1 constitute misconduct.

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


Facts Proved: 1(a), 1(b), & 1(c).

Facts Not Proved: None.

Grounds: Misconduct

Fitness to Practise Impaired: Yes

Sanction: Suspension Order (12 Months)

Finding

Preliminary Matters

Notice and Proceeding in Absence

1. The Panel noted the terms of the formal notice of hearing dated 21 May 2018 served on the Registrant at her address registered with the HCPC providing details of the final hearing. The Panel was satisfied that proper notice had been given in terms of the relevant rules of the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003.

2. Mr Ferson on behalf of the HCPC applied to proceed in the absence of the Registrant. He referred to the HCPTS Practice Note on “Proceeding in Absence” and to the relevant case law. He advised the Panel that there is a telephone attendance note dated 25 May 2018 between the Registrant and the HCPC where the Registrant states she will not be attending. In a further contact with the HCPC on 29 May 2018, the Registrant again advised she would not be attending. A letter was then issued by the HCPC to the Registrant explaining the position to her regarding attendance, financial issues and obtaining representation. However, Mr Ferson told the Panel that there has been no further correspondence or contact with the Registrant since that time. He submitted that the Registrant’s absence was voluntary and that an adjournment would be unlikely to result in her attendance. He reminded the Panel of the need for expedition and the public interest.

3. The Panel is aware that its discretion to proceed in absence is one which should be exercised with care. The Legal Assessor gave advice to the Panel and referred it to the case of Adeogba v GMC [2016] EWCA Civ 162 which makes clear that the first question the Panel should ask is whether all reasonable efforts have been taken to serve the Registrant with notice. Thereafter, if the Panel is satisfied on notice, the discretion whether or not to proceed must be exercised having regard to all the circumstances of which the Panel is aware, with fairness to the Registrant being a prime consideration, but with fairness to the HCPC and the interests of the public also considered.

4. The Panel determined to proceed in the absence of the Registrant. She is aware of the hearing today and has indicated she will not be attending. She has not sought an adjournment and the Panel consider that she has voluntarily absented herself. The Panel noted that options were discussed by the HCPC with the Registrant in a 1 hour and 11 minute telephone call on 29 May 2018 and the Panel consider the Registrant is fully aware of the options to allow her to attend this hearing. In these circumstances the Panel decided it was fair and appropriate to proceed in the absence of the Registrant.

Amendment of Allegation

5. Mr Ferson submitted that the HCPC do not intend to offer any evidence in respect of particular 1(c) and seeks deletion of that. The witness JC speaks about the issues but states that she did not see the Registrant. In those circumstances he submitted that the HCPC did not intend to seek to prove the particular. He submitted there was no under prosecution as there is no reasonable prospect of proving that allegation and he sought to delete the particular from the allegation.

6. The Panel accepted the advice of the Legal Assessor as to its discretion to allow amendment and he reminded it of the interests of justice. It determined to allow the HCPC to amend as it is clear that it is unlikely to be able to prove the particular. It is not in the Registrant’s interests, nor is it in the public interest, to proceed in respect of this particular and the Panel accordingly allows the amendment sought by the HCPC.

Application to hear evidence by telephone

7. Mr Ferson applied to hear the evidence of JC and EL by telephone. He submitted that this was fair and proportionate and would make the best use of time. He referred the Panel to the HCPTS Practice Note on “Case Management” and to the factors set out there. He submitted that the Registrant did not challenge the evidence of these two witnesses and the Panel would be able to ask questions of and explore the evidence of these witnesses.

8. The Legal Assessor reminded the Panel of its powers under Article 32 (3) of the Health and Social Work Professions Order 2001 and the need to conduct proceedings expeditiously and in a manner proportionate with their complexity. He advised the Panel that it must act fairly and justly in the exercise of its case management powers.

9. The Panel determined to grant the application. It considered that it was fair, just, appropriate and expedient to do so bearing in mind the extent of the evidence to be heard and likely lack of challenge.


Background

10. The Registrant was employed as a locum Physiotherapist at three hospitals, Milton Keynes University Hospital, Peterborough City Hospital and Kettering General. On three separate occasions during her locum appointments, the Registrant was unable to undertake scheduled work as she was under the influence of alcohol and unable to carry out her duties. She was referred to the HCPC after all three separate occasions.

11. Mr Ferson told the Panel that there is to be no live evidence from the witnesses SM and SP, both from Milton Keynes University Hospital. They have disengaged with the HCPC, and SP has left the hospital. Witness SM has advised the HCPC that she has some health issues and does not want to attend. Mr Ferson told the Panel that there was, in any event, evidence from other witnesses, JG and JW, who also spoke to the particulars of the allegation. He submitted that it was for the Panel to attach such weight to the hearsay evidence of SM and SP as it considered appropriate.


Decision on Facts

Witness 1- JG

12. The witness affirmed and confirmed the contents of his witness statement were true to the best of his knowledge and belief. He is a manager with ID Medicals, a locum recruitment agency supplying staff for the NHS.

13. JG explained that he had placed the Registrant in a locum contract with Milton Keynes University Hospital. The witness explained that he had attended the hospital accommodation unit on 4 December 2015 having been advised that the Registrant had not attended for her first shift. He attended with a colleague and spoke to the Registrant through the door of her room in the accommodation unit. He said he could smell alcohol and the Registrant was trying to speak but seemed unable to do so. She was sobbing and wailing. When the door opened there were empty boxes of wine on the floor and a strong smell of alcohol. He said the Registrant had been incoherent and said “I can’t do this anymore”. JG said that the Registrant seemed somewhat aggressive and she seemed drunk and emotional. JG explained the wine boxes he saw were ones that contained several bottles and there was more than one. He confirmed he had not previously worked with the Registrant.

Witness 2 - JW

14. The witness took the oath and confirmed the contents of her witness statement were true to the best of her knowledge and belief. She is currently an assistant manager for Milton Keynes University Hospital in the accommodation department.

15. She explained that on the morning of 4 December 2015, she contacted the agency that had appointed the Registrant as a locum as she had been told the Registrant was drunk and unwell. She then met the Registrant in the lounge of the accommodation unit after her colleague SM had brought the Registrant down from her bedroom. She was swaying and incoherent and seemed very drunk.

Witness 3 – TF

16. The witness took the oath and confirmed the contents of her witness statement were true to the best of her knowledge and belief. She is a manager at Peterborough University Hospital. She is responsible for the on-site accommodation for staff and is now employed by North West Anglia NHS Foundation Trust.

17. TF explained that the Registrant had stayed at the Trust accommodation as she was a locum Physiotherapist. She explained her recollection of the incident on 22 January 2016. She said when she entered the Registrant’s bedroom there was a smell of alcohol, and the Registrant seemed very lethargic and sleepy. It took two people to hold up and dress the Registrant. The Registrant had subsequently apologised for her behaviour and thanked TF and the staff for taking care of her via email.

Witness 4 - JC

18. The witness affirmed and she confirmed that the contents of her witness statement were true to the best of her knowledge and belief. She was an Advanced Specialist Physiotherapist in the Northamptonshire Healthcare NHS Foundation Trust at the time of the incident. She is registered with the HCPC. She is currently a Senior Physiotherapist Peterborough City Hospital at the North West Anglia NHS Foundation Trust.

19. JC explained that she had previously met the Registrant in 2008 during her placement on her training as a Physiotherapist. She told the Panel about the events of 4 October 2016 when the Registrant was staying at JC’s home whilst working as a locum. She told the Panel that she had smelt alcohol on the Registrant on the morning of 4 October 2016 and she had seemed upset. She said she saw beer or alcohol cans on the Registrant’s bedroom floor. JC said she felt the Registrant was a vulnerable adult and that day, 4 October 2016, JC said she had returned home with colleague EL to take care of the Registrant as she was concerned about her wellbeing. She told the Panel that she later called an ambulance for the Registrant. When the ambulance arrived several hours later at about midday, they took the Registrant downstairs and she still seemed to be drunk. JC said there was an empty crate of beer in her bedroom and that the Registrant could not get down the stairs herself, and had been unable to dress herself.

20. JC said the Registrant’s behaviour was totally unexpected, and she said had thought the Registrant had been very professional when she had worked with her before.

Witness 5 – EL

21. The witness affirmed and she confirmed that the contents of her witness statement were true to the best of her knowledge and belief. She is a Physiotherapist registered with the HCPC. She is employed as a Physiotherapist at the Northampton General Hospital as a Falls Prevention Coordinator. She was a colleague of the Registrant at the Kettering General Hospital at the time of the incidents in October 2016.

22. EL explained her recollection of the incident involving the Registrant on 3 and 4 October 2016 and to the email she sent to the HCPC at the time. EL said the Registrant had said she missed her grandfather and was very emotional. She said that it was not clear why the Registrant had been so emotional at the time.

Closing Submissions for the HCPC

23. Mr Ferson closed the case for the HCPC. He summarised the law and the evidence heard. He reminded the Panel that the burden of proof, on the balance of probabilities, rested on the HCPC. He invited the Panel to consider that the witnesses gave measured and compelling accounts of the incidents and to also have regard to the notes of the incidents taken by the witnesses at the time. He referred the Panel to the law on misconduct and the case of Roylance v GMC (No 2) [2001] 1 AC 311. He referred to the HCPC “Standards of conduct, performance and ethics” and reminded the Panel that both the 2012 and 2016 covered the period. On the 2012 Standards, he submitted that Standards 3 and 13 were engaged in this case, and that on the 2016 Standards, standard 9.1 was engaged.

24. Mr Ferson submitted that the facts indicated deplorable conduct and fell short of what would be proper in the circumstances. The Registrant had been intoxicated when she should be have been fulfilling her professional role. The behaviour was repeated on three occasions. Mr Ferson referred the Panel to the HCPTS Practice on Impairment and he reminded it of the tests of impairment set out in CHRE v NMC & Grant [2011] EWHC 927 (Admin). He referred the Panel to the need to consider both aspects of impairment, namely the personal and the public component and he referred to the need to consider the Registrant’s insight and remediation. He reminded the Panel of the notes of discussions between the HCPC and the Registrant which indicated a lack of insight by the Registrant. He also referred to the fundamental importance of the public interest including the need to uphold proper professional standards and public confidence in the profession. Mr Ferson submitted that the Registrant is currently impaired on both the personal and public components.

25. The Panel accepted the advice of the Legal Assessor and applied the relevant principles. The Legal Assessor advised the Panel on the approach to facts. It was mindful that the civil burden of proof, the balance of probabilities, rests on the HCPC, and that the Registrant need prove nothing. He reminded the Panel that on the question of grounds, there was no burden of proof and that was a matter for its own professional judgement. He referred it to the guidance on misconduct found in Roylance v GMC (No 2) [2001] 1 AC 311. On the issue of impairment of fitness to practice, the Legal Assessor referred the Panel to the HCPTS Practice Note on “Finding that Fitness to Practise is Impaired”, and to the guidance on the assessment of impairment and consideration of the public interest, in the case of CHRE v NMC & Grant [2011] EWHC 927 (Admin). He reminded the Panel that it should consider insight, remorse and the risk of repetition of the behaviour leading to the facts found proved. It must keep in the forefront of its mind the central importance of the need to protect the public and the wider public interest.

26. The Panel carefully considered Mr Ferson’s submissions and all the evidence before it. It considered the file notes of discussions the HCPC have had with the Registrant. It noted that at times the Registrant acknowledged and appeared to admit that the alleged incidents took place. However, with fairness in mind, the Panel have proceeded on the basis that the Registrant denies the allegation.

27. The Panel found all the witnesses credible, reliable, compelling and consistent. All five witnesses set out for the Panel a clear picture of the three incidents in a candid and open manner. The Panel fully accepted the evidence of the witnesses and did not consider that it was, to any meaningful extent, disadvantaged by hearing the evidence of JC or EL via telephone.

Particular 1(a) - Proved

28. The evidence of JG and JW clearly set out that the Registrant was unable to undertake her professional duties on 4 December 2015 at Milton Keynes University Hospital as she was under the influence of alcohol. JG and JW both said that they saw the Registrant at the time and they both told the Panel in their witness statements, and in their live evidence, that the Registrant appeared drunk, was incoherent, that there was a smell of alcohol in her bedroom, and that empty bottles and boxes of alcohol were strewn on the Registrant’s bedroom floor. The Panel placed some weight on the witness statements of SP and SM. It found that on the balance of probabilities, this particular was proved.

Particular 1(b) - Proved

29. The Panel accepted the evidence of TF. She told the Panel that she had witnessed the events of 22 January 2016 when she had gone to the Registrant’s bedroom in the hospital accommodation. She told the Panel the Registrant was not coherent and was very lethargic and unable to stand. She said that bottles and cans of alcoholic and non-alcoholic drinks were on the bedroom floor. She also told the Panel that the Registrant’s bedroom smelt of alcohol. The Panel accepted that evidence and it found that the Registrant was unable to undertake her professional duties on 22 January 2016 as she was under the influence of alcohol.

Particular 1(c) - Proved

30. The Panel accepted the evidence of JC and EL. Both witnesses gave clear accounts of the events of 4 October 2016. The Registrant had been staying in JC’s home and the Panel heard from JC about the morning of 4 October 2016. JC’s evidence was that the Registrant was glazed and emotional and that there were beer cans on the floor of her room. JC later returned to her home with EL. They both told the Panel that they had found the Registrant drunk in her bedroom in JC’s home, and that they were so concerned that they had called an ambulance. EL’s evidence was consistent with and corroborated the evidence of JC. EL told the Panel that the Registrant’s bedroom had empty beer cans on the floor. The Panel also considered the email sent by EL to the HCPC on 11 December 2016 setting out her recollection of the incident. The Panel found that the Registrant was unable to undertake her professional duties on 4 October 2016 as she was under the influence of alcohol and it found this particular proved.


Decision on Grounds

31. The Panel accepted the advice of the Legal Assessor and was mindful of the advice in the case of Roylance. The Panel has found proved that on three occasions the Registrant was unable to undertake her professional duties due to being under the influence of alcohol. That is a serious matter. She was employed as a Locum and as such her employers on each occasion required her professional services as a Physiotherapist. The Registrant’s failure to attend work will have impacted on both the provision of services to patients and upon colleagues. The Panel find that the repeated failings of the Registrant constitute a serious, falling short of what would have been proper and amount to misconduct.


Decision on Impairment

32. The Panel next considered the issue of impairment and considered the HCPTS Practice Note on Impairment and the guidance in the case of Grant. The Registrant has not appeared before the Panel and she has provided no evidence to the Panel.

33. The Panel considered the notes of the telephone calls between the HCPC and the Registrant on the 25 and 29 May 2018. These indicate that the Registrant considered that the HCPC had not handled her case well and she had taken issue with her HCPC Case Manager. She had been encouraged by the HCPC to attend the Final hearing and the possibility of financial assistance had been explained to her. The Panel also noted that the Registrant had touched on some personal issues which she said had led her to consume alcohol. The Panel considered that these notes indicate a lack of insight.

34. The Panel was mindful that there is a complete lack of any direct evidence from the Registrant as to insight or remediation, but note that she did apologise to a number of the witnesses. There is no evidence of the Registrant’s current circumstances. In these circumstances the Panel found that the Registrant has little, if any, insight in to her misconduct and there is no evidence of any remediation. The Panel determined that there is a high risk of repetition of the misconduct.

35. The Panel determined that the Registrant’s conduct breached the 2012 HCPC “Standards of conduct, performance and ethics”, standards 3 and 13 and standard 9.1 of the 2016 Standards which state :-

“3 You must keep high standards of personal conduct.

13 You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.”

36. The Panel considered the approach to impairment of Dame Janet Smith, cited with approval in the Grant case :–

“Do our findings of fact in respect of the doctor's misconduct, deficient professional performance, adverse health, conviction, caution or determination show that his/her fitness to practise is impaired in the sense that s/he:

a. has in the past acted and/or is liable in the future to act so as to put a patient or patients at unwarranted risk of harm; and/or

b. has in the past brought and/or is liable in the future to bring the medical profession into disrepute; and/or

c. has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the medical profession”

37. The Panel determined that a, b, and c of the test are engaged. The Registrant has in the past, and is liable in the future to act so as to put patients at unwarranted risk of harm; that the Registrant has in the past and is liable in the future to bring the profession into disrepute; and that the Registrant has in the past and is liable in the future to breach a fundamental tenet of the profession, that of trust and integrity.

38. The Panel determined, in light of the gravity and nature of the misconduct found, that proper standards of behaviour would not be upheld, and that public confidence in the profession would be undermined were it not to make a finding of impairment. Accordingly, on both the personal and on the public components of impairment, the Panel determined that the Registrant’s fitness to practice is currently impaired.


Decision on Sanction 

Submissions on Sanction

39. Mr Ferson reminded the Panel about the purpose of sanction and the need to consider insight and remediation as part of its consideration of sanction. He reminded the Panel of its earlier findings on the potential impact of the Registrant’s behaviour on patients and colleagues. Mr Ferson referred the Panel to paragraph 24 of the HCPC “Indicative Sanctions Policy” as to the procedure it ought to follow.

40. Mr Ferson submitted that aggravating factors were the impact on patients and colleagues, the sustained nature of the misconduct, the Registrant’s lack of insight and the high risk of repetition. He suggested that mitigating factors may be the Registrant’s previous good character and the evidence of her apologies.

41. Mr Ferson submitted that a Caution was not appropriate, nor were Conditions of Practice given the nature of the misconduct. He submitted that a Suspension Order may be appropriate. He submitted that a Suspension Order should not imposed as an opportunity to allow the Registrant to develop insight, that being the advice in PSA v GPhC v Onwughala [2014] EWHC 25221.

Decision

42. The Panel took the advice of the Legal Assessor who referred the Panel to the HCPC “Indicative Sanctions Policy”. He reminded the Panel to consider any sanction in ascending order and to apply the least restrictive sanction necessary to protect the public. It should act proportionately and consider any aggravating and mitigating factors. The Panel should bear in mind the importance of the public interest and that the primary purpose of sanction was protection of the public.

43. The Panel considered all the evidence before it. It first considered the mitigating and aggravating factors. The Panel found that the mitigating factors were:-

a. the misconduct did not take place in the work place

b. the Registrant was previously of good character

c. the Registrant made some acknowledgement of the incidents and made some apologies

44. The Panel considered that the aggravating factors were:-

a. the Registrant’s repeated and sustained pattern of behaviour

b. the substance abuse involved in the misconduct

c. the misconduct took place in the employer’s accommodation

d. the high risk of repetition

e. the impact on colleagues

f. the impact on patients

45. The Panel approached the ladder of sanction, beginning with the least restrictive first, bearing in mind the need for proportionality. Taking no further action and the sanction of a Caution Order would not reflect the nature and gravity of the misconduct and the finding of impairment. These sanctions would not be adequate given the wider public interest in maintaining confidence in both the profession and the regulatory process. Neither order was appropriate or proportionate given the nature of the misconduct found in this case.

46. The Panel next considered a Conditions of Practice Order. The allegation found proved is serious repeated misconduct impacting on both patients and colleagues. The Registrant breached a fundamental tenet of the profession. The Panel has found the Registrant lacks insight and it has no evidence of any remediation. There is nothing to suggest that the Registrant is willing or able to comply with any conditions of practice that might be imposed. The Panel was not able to devise realistic, workable, proportionate or appropriate conditions that would address the conduct that led to the finding of misconduct and the risk represented by the Registrant. The Registrant has not engaged with the HCPC for some time and the Panel know nothing of her current situation. In all these circumstances, the Panel does not consider that a Conditions of Practice Order would be an adequate or proportionate sanction, nor would it satisfy the public interest.

47. The Panel next considered the sanction of a Suspension Order. The Panel were mindful of paragraph 41 of the “Indicative Sanctions Policy”:- “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 do not have evidence that the Registrant is unable to resolve or remedy her failings and it determined that in the circumstances of this case that a Suspension Order would serve to protect the public and would also satisfy the public interest by upholding proper standards and maintaining public confidence in the profession and the Regulator. The Panel determined that, at this time, a Suspension Order is the appropriate and proportionate sanction which balances the interests of the Registrant with those of the public.

48. The Panel determined that a 12 month Suspension Order would be appropriate and would serve to mark its disapproval of the conduct and send a clear message to the profession and to the public.

49. The Panel considered the Sanction of Striking Off. It determined that such an order would not be the only means of protecting the public. Further, the nature and gravity of the misconduct is not such that nothing less than a Striking Off Order would be sufficient and proportionate at this time.

50. The Panel suggest that a future Reviewing panel may be assisted by:-

• Engagement by the Registrant

• A reflective piece from the Registrant regarding the impact of her misconduct on patients and colleagues

• Any relevant information about the Registrant’s health and well-being

• Any relevant information as to professional development

• Any relevant reference or testimonials in relation to paid or unpaid work

Order

The Registrar is directed to suspend the registration of Miss Alexandra Claire Burns for a period of 12 months from the date this Order comes into effect.

Notes

Interim Order

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.

1. The Panel heard from Mr Ferson and took account of all the information before it. The Panel accepted the advice of the Legal Assessor. He referred it to the HCPTS Practice Notes on “Proceeding in the Absence of the Registrant” and on “Interim Orders” and reminded the Panel that the primary purpose of an interim order is protection of the public and that it is necessary to balance the interests of the Registrant with the need to protect the public.

2. There has been no change in circumstances since the Panel decided to proceed in the absence of the Registrant and it determined to do so in respect of the Interim Order Application. The Registrant has had notice in the Notice of Hearing that an interim order may be sought following the imposition of a sanction.

3. The Panel is mindful that it is carrying out a risk assessment exercise.  The Panel determined that that it would be wholly incompatible with its findings and with the sanction imposed to conclude that an interim order is not necessary for protection of the public or in the public interest. The Panel accordingly find that an interim order is necessary on both grounds. Given its findings the Panel determined that it is appropriate that an Interim Suspension Order is imposed for a period of 18 months to cover any appeal period. When the appeal period expires this Interim Order will come to an end unless there has been an application to appeal. If there is no appeal the Suspension Order shall apply.

Hearing History

History of Hearings for Alexandra Claire Burns

Date Panel Hearing type Outcomes / Status