Miss Claire Swindell

Profession: Physiotherapist

Registration Number: PH84524

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 13/08/2018 End: 16:00 17/08/2018

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

 

During the course of your employment as a Physiotherapist at Humber NHS Foundation Trust, between 10 May 2016 and 18 July 2016, you:

 1. did not maintain adequate records and/or arrange follow up appointments and/or referrals for the following patients: 

a. Patient 1: 

 

i. Record your first appointment of 30 June 2016;

ii. Arrange follow-up appointment.

 b. Patient 2:

i. Record your appointment of 18 July 2016;

ii. Arrange follow-up appointment.

 c. Patient 3:

 i. Record your appointment of 13 June 2016;

 ii. Complete a discharge letter.

 d. Patient 4:

 i. Record your first appointment of 02 June 2016;

 ii. Record the follow up appointments on 07 June 2016 and/or 21 June 2016;

 iii. Complete a discharge letter.

 e. Patient 5:

 i. Record your first appointment of 13 June 2016;

 ii. Arrange a follow-up appointment.

 f. Patient 6:

 i. Record your first appointment of 13 June 2016;

 ii. Arrange a follow-up appointment.

 

g. Patient 7:

 i. Make contemporaneous notes in that you wrote the notes 15 days after the appointment of 04 July 2016;

 ii. Arrange a follow-up appointment.

 h. Patient 8:

 i. Make contemporaneous notes in that you wrote the notes 13 days after the appointment of 21 June 2016.

 

i. Patient 9:

 i. Make contemporaneous notes for the appointments which took place on 10 June 2017 and/or 08 July 2017.

 j. Patient 10:

 i. Make contemporaneous notes for the appointment that took place on 21 June 2016.

 k. Patient 11:

 i. Complete the referral document for ultrasound scan via the General Practitioner.

 

l. Patient 12:

 i. Complete the referral document for Orthopaedic referral to the General Practitioner.

 ii. Make contemporaneous notes for the appointment that took place on 12 July 2017.

m. Patient 13:

 i. Record the follow up appointment that took place on 24 June 2016;

 ii. Arrange further follow-up appointments.

 n. Patient 14:

 i. Arrange follow-up appointment.

 o. Patient 15:

 i. Send X-ray request to the General Practitioner;

 ii. Make contemporaneous notes of the appointment that took place on 20 June 2016.

 

p. Patient 16: 

i. Send referral to Community Multidisciplinary care team and/or Community falls team;

 ii. Write to the General Practitioner regarding the patient’s falls.

 

q. Patient 18:

 i. Recorded the appointment of 27 June 2016 as telephone contact when it was a face to face appointment.

 

r. Patient 19: 

i. Record your first appointment of 10 May 2016.

 s. Patient 20:

 i. Record of the objective examination at the first appointment on 28 June 2016.

 2. Did not carry out objective examinations for the following patients:

 a. Patient 17 during the first appointment on 02 June 2016;

 b. Patient 18.

 

3. The matters set out in paragraphs 1(a)(i) to 2b constitute misconduct and/or lack of competence.

 

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

 

Finding

Amendment of the Allegation

1. Mr Dite made an application to amend the Allegation. The Registrant was advised of the proposal by the HCPC to

make amendments to the Allegation by a letter dated 31 January 2018. Mr Dite also proposed three further minor

amendments.

2. Mr Smith did not oppose the application.

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

4. The Panel was satisfied that the amendments were appropriate and did not prejudice the Registrant. The Panel

agreed all the proposed amendments.

 

Hearing in private

5. The Panel raised the issue of whether part of the hearing should be heard in private if there were any

references to details of the Registrant’s health. Mr Dite and Mr Smith accepted that this was an appropriate step

to protect the Registrant’s private life.

6. Having received advice from the Legal Assessor, the Panel confirmed that part of the hearing relating to the

Registrant’s health would be heard in private.

 

Background

7. The Registrant has been practising as a qualified physiotherapist since August 2008. Initially she worked as a

Band 5 in the National Health Service. She began employment on a part time basis with Doncaster Rovers Football

Club in 2011 and Goole Football Club in 2013. In 2015 the Registrant began working for Sanctuary Alllied Health

Agency as a Locum Physiotherapist. One of her placements was in the Neighbourhood Community Services Team at the

Humber NHS Foundation Trust. The Registrant was later offered a second placement at Humber NHS Foundation Trust

(“the Trust”), working with the Musculoskleletal (MSK) waiting list team at East Riding Community Hospital in

Beverley from 10 May 2016.

8. On 18 July 2016, one of the administration staff at the Trust answered a telephone call from a patient

(Patient 15). The patient queried why a letter, which the Registrant allegedly had told the patient would be sent

to the patient’s GP requesting an X-ray, had not been received by the GP. The administrator checked the patient’s

electronic record and noticed that there was no letter to the GP saved on the system and also no notes recorded

in relation to the most recent appointment that had taken place on 20 June 2016. The electronic system used at

the Trust was known as “SystmOne”. The administrator informed the Registrant’s manager, AG, of the lack of notes

on the system. This precipitated a wider audit of the Registrant’s cases, which revealed several failings with

the Registrant’s record keeping.

9. The administrator notified AG of this issue, who in turn contacted, amongst others, AS, Clinical Physiotherapy

Manager.

10. That same day (18 July 2016) AS and AG met with the Registrant and informed her that her scheduled patient

appointments would be cancelled and her agency employment would be terminated. The Registrant was distressed and

explained that she thought the issue may have been due to her not saving records properly. She was asked to come

in the next day to identify any incomplete records or outstanding actions, which the Registrant agreed to do. 

11. Over the following weeks, AS and the Registrant’s manager undertook an audit of the Registrant’s entire

caseload. The audit allegedly revealed multiple failings in the Registrant’s record keeping and multiple failures

to complete follow-up actions.

12. At the request of the HCPC, AS selected a number of cases which she deemed to be the most serious. These

cases are reflected in the various factual particulars of the allegation.

 

Decision on Facts

13. The Panel heard evidence from AS, a Band 8a Clinical Physiotherapy Manager with York Teaching Hospitals NHS

Trust. The Panel found that AS was a credible witness. She was consistent and did her best to assist the Panel.

The Panel found that her evidence was reliable in respect of matters where she had a personal involvement. The

Panel noted that AS did not become involved until the 18 July 2016 and had no involvement in any earlier meetings

with the Registrant. The Panel gave limited weight to her evidence on the involvement of AG, a Band 7

Physiotherapy Team Leader and the Registrant’s Line Manager, or others when she was not herself present.


14. The Panel heard evidence from the Registrant. The Panel found that she was a credible witness. The Panel had

some reservations about the detailed description given by the Registrant in relation to some of the patients.

There were occasions during her evidence when the Registrant hesitated and recognised that she might be mistaken.

The Panel attributed any inconsistencies in the evidence relating to the detail regarding the individual patients

to the passage of time since the relevant events.

15. At the outset of the hearing the Registrant made a number of admissions to some of the particulars of the

Allegation. In these admissions Mr Smith explained that the Registrant admitted that there was no record, but did

not accept that there was a failure. The Panel took the Registrant’s admissions into account, but made its

decision in respect of the facts on the basis of the oral and the documentary evidence.


Particular 1(a)


16. The Panel concluded from the documentary evidence that Patient 1 attended an appointment with the Registrant

on 30 June 2016. The appointment is confirmed in the “appointment history” section of the patient record on

SystmOne. If a note had been recorded for the appointment it would be included in the “Journal” section of the

patient record in chronological sequence and dated 30 June 2016. There was no note in the “Journal” section for

30 June 2016.

17. The Registrant had access to SystmOne during patient appointments and the expectation was that she would type

her notes of each patient appointment onto SystmOne during the 30 minute appointment with the patient and save

the record she had made.  The audit carried out by AS demonstrated that for over one hundred of the patients seen

by the Registrant there was a record of each appointment saved on SystmOne.

18. The Registrant accepted that there is no note for 30 June 2016. AS explained that there are two possible

explanations for the missing note. The first possible explanation is that the Registrant did not write any notes,

the second possible explanation is that the Registrant wrote notes, but did not save her notes. AS did not ask

Patient 1 or any of the other patients involved in the Allegation whether they saw the Registrant writing notes.

Patient 4 volunteered information to AS that she had seen the Registrant writing notes during the appointment.


19. The Panel considered carefully the descriptions given by AS and the Registrant for the operation of SystmOne.

The descriptions differed and the Panel found that the Registrant was struggling to use SystmOne effectively and

efficiently. On occasions she had several patient records open at the same time. When the Registrant’s records

were checked by an administrator, she identified that several of the records had not turned “blue” to indicate

that they had been saved.  AS told the Panel that an IT audit showed that the Registrant opened the files of each

patient but the audit did not conclude whether it was written on and subsequently deleted or not written on at

all.  There was no suggestion of dishonesty from the Registrant.  When the lack of records came to light she

admitted that she had difficulties saving files. The Panel concluded, from the Registrant’s descriptions of the

system, that she did not fully understand how to use it. The Panel found that the Registrant on these occasions

did not ensure that her notes were properly recorded on SystmOne by saving them.

20. It was the Registrant’s responsibility, as the treating physiotherapist, to not only make a note of the

appointment with Patient 1, but also to ensure that her note was available to be read by the patient, other

health professionals, and herself. In the context of the system operated by the Trust, there was an obligation on

the Registrant to save notes of these patient appointments on SystmOne. There was a failure to do so, therefore

an inadequate record, and the Panel found particular 1(a)(i) proved.

21. The Panel found that the circumstances were the same in respect of patients 2, 3, 4, 5, 6, 13 and 19.

22. AS explained that after a patient appointment the physiotherapist made a decision on the future care pathway

for the patient which might be a follow-up appointment, discharging the patient, making a referral, or placing

the patient on an “Open Access” list. A patient should not be left with none of these outcomes following an

appointment.

23. The patient record for Patient 1 shows that there was no action taken after the appointment on 30 June 2016.

This includes that there was no record of a future appointment.

24. The Registrant denies that there was a failure on her part because she believes that she gave appointment

cards for follow up appointments to the patients. The Panel considered the possibility that the Registrant was

giving appointments to patients, but not making any record of the future appointment on SystmOne. There was no

evidence that on any occasion one of the Registrant’s patients had arrived with an appointment card when they

were not expected. The Panel considered that if the Registrant was making this error on SystmOne, it would have

come to light. The Panel found that the Registrant had not recorded the further appointment on SystmOne and the

Panel did not accept that she had given an appointment card to Patient 1.

25. Mr Smith submitted that the HCPC has not proved particular 1(a)(ii) because there is no proof of the

particular follow up action which should have been taken for Patient 1 following the appointment on 30 June 2016.

There are no notes of the appointment and therefore AS was not able to specify the type of follow up action which

may have been appropriate. The Panel did not accept Mr Smith’s submission. Although it is not known what form of

follow up action was appropriate, the Panel accepted a AS’s evidence that some action was required. 

26. The Panel found particular 1(a)(ii) proved by the documentary evidence and the evidence of AS.

 

Particular 1(b)

27. The Panel found particular 1(b) proved by the documentary evidence and the evidence of AS. The Panel found

this particular proved for the same reasons as it found particular 1(a)(i) proved.


Particular 1(c)

28. The Panel found particular 1(c)(i) proved by the documentary evidence and the evidence of AS. The Panel found

this particular proved for the same reasons as it found particular 1(a)(i) proved.

29. The notes for Patient 3 record that the Registrant planned to discharge the patient from the service. The

documents show that the Registrant did not send a discharge letter to the patient’s GP. A discharge letter was

later sent by AS on 22 July 2016.

30. In her evidence AS refers to the Humber Administration Standard Protocol. This sets out an expectation that

the discharge letter should be sent to the GP within 48 hours of the discharge. The discharge letter ensures that

the GP is aware of the patient’s position. AS was not aware that a different custom and practise may have been in

operation at Beverley.

31. The Panel found that there was an expectation that the Registrant should complete a discharge letter within

48 hours and that there was therefore a failure to arrange the required follow up action. The Panel therefore

found particular 1(c)(ii) proved.

32. However, the Panel also found facts relevant to particular 1(c)(ii) which are relevant to the degree of the

Registrant’s culpability in respect of this failure.  The Registrant was not aware of the Humber Administration

Protocol which was not drawn to her attention during her induction. The Registrant believed that it was

acceptable at the Trust for patients to be placed on a discharge list for up to three months provided there was

no special information which needed to be communicated to the GP. If a patient was placed on the discharge list

the administrative task of sending the discharge letters would be undertaken at a later date. The Registrant’s

belief about this operation of a discharge list came from her discussions with AG. There was evidence in the

documents to support the Registrant’s understanding in respect of this custom and practise at Beverley. For

example, there were records showing that AG made a decision on 1 April 2016 to discharge a patient from care but

a discharge letter was not sent until 26 May 2016.  Similarly, another patient’s record shows that AG made a

discharge decision on 14 July 2016 but the letter was not sent until 1 September 2016.  A further one

demonstrates a decision made by AG on 1 September 2016 and the discharge letter was not sent until 21 November

2016.   These demonstrate the many weeks between discharge being written on patient records and the discharge

letter being sent which appeared to be common practice. 


Particular 1(d)

33. The Panel found particular 1(d)(i) proved by the documentary evidence and the evidence of AS. The Panel found

this particular proved for the same reasons it found particular 1(a)(i) proved.

34. The Panel found particular 1(d)(ii) proved by the documentary evidence and the evidence of AS. In her

evidence the Registrant suggested that Patient 4 did not attend the follow up appointment on 21 June 2016. The

Panel considered the documents and concluded that the Registrant was mistaken. When AS spoke to Patient 4 on 5

August 2016 the patient reported that she felt the physiotherapy intervention ended abruptly so wasn’t entirely

satisfied. This account is consistent with the written records and inconsistent with the Registrant’s

recollection that Patient 4 did not attend an appointment. The Panel found particular 1(d)(ii) proved for the

same reasons it found particular 1(a)(i) proved.

35. The Panel found particular 1(d)(iii) proved by the documentary evidence and the evidence of AS. The Panel

found this particular proved for the same reasons it found particular 1(c)(ii) proved. The Panel found the same

facts in relation to the Registrant’s understanding of the discharge list.


Particular 1(e)

36. The Panel found particular 1(e)(i) proved by the documentary evidence and the evidence of AS. The Panel found

this particular proved for the same reasons it found particular 1(a)(i) proved.

37. The patient record does not show any follow up action arranged by the Registrant following the appointment

with Patient 5 on 13 June 2013. The Panel found particular 1(e)(ii) proved by the evidence of AS and the

documentary evidence and for the same reasons it found particular 1(a)(ii) proved.


Particular 1(f)

38. The Panel found particular 1(f)(i) proved by the documentary evidence and the evidence of AS. The Panel found

this particular proved for the same reasons it found particular 1(a)(i) proved.

39. Patient 6 had spinal symptoms. It was later identified that he was suffering from Cauda Equina related issues

with potentially serious implications. There is no criticism of the Registrant who could not have known about

this long standing condition when she saw the patient.  Although there are no notes of the Registrant’s

appointment with Patient 6 on 13 June 2016, the nature of the Patient’s symptoms as a result of the underlying

condition would mean that the appropriate follow-up action was a follow up appointment for the patient.

40. The documents saved on SystmOne do not show any follow up action for Patient 6. He attended the physiotherapy

department on 2 August 2016 with a copy of an MRI of his lumbar spine.

41. The Panel found particular 1(f)(ii) proved. 


Particular 1(g)

42. The patient record for Patient 7 shows that the notes in relation to the appointment on 4 July 2016 with the

Registrant were entered into the system on 19 July 2016.

43. In his submissions to the Panel Mr Smith focused on the reason the Registrant entered the notes into SystmOne

on 19 July 2016. The Registrant’s understanding at the time she made the entries on 19 July 2016 was that AG was

asking her to make a note on SystmOne for patients when she had a recollection of the patient appointment.

44. The Panel considered that the criticism made of the Registrant in particular 1(g) is that she failed to make

a contemporaneous record. That failure occurred well before 19 July 2016. It was unnecessary for the Panel to

make detailed findings about the circumstances and events on 19 July 2016. The criticism does not relate to the

Registrant’s actions on 19 July 2016, but to her inaction between 4 July 2016 and 19 July 2016. The expectation

of the Trust, as set out in the guidance sheet, was that records should be made within 24 hours. Although this

guidance was not drawn to the Registrant’s attention, there is a general requirement on the Registrant, to

complete records “promptly and as soon as possible after providing care, treatment or other services” as set out

in the HCPC Standards of conduct, performance and ethics. A note made on 19 July 2016 in respect of an

appointment on 4 July 2016 is not a contemporaneous note.

45. Although the Registrant did not specifically address the absence of a contemporaneous note of the appointment

on 4 July 2016, her general explanation for the absence of notes is that she failed to save notes on SystmOne.

The Panel found that this is the most likely explanation for the Registrant’s failure to record a contemporaneous

note for the appointment on 4 July 2016.

46. The Panel found particular 1(g) proved.

 
Particular 1(h)

47. The patient record for Patient 8 shows that the notes in relation to the appointment on 21 June 2016 with the

Registrant were entered into SystmOne on 4 July 2016.

48. In the case of Patient 8 the Registrant does not explain what prompted her to belatedly enter the notes on 4

July 2016. The delay in completing the notes was thirteen days. The note made on 4 July 2016 was therefore not

contemporaneous.

49. The Panel found particular 1(h) proved for the same reasons it found particular 1(g) proved. Again, the Panel

found that the most likely explanation for the absence of contemporaneous notes is that the Registrant failed to

save the notes on SystmOne.


Particular 1(i)

50. The patient record for Patient 9 shows that the notes in relation to the appointment on 8 July with the

Registrant were entered into SystmOne on 19 July 2016.

51. The Panel found this particular proved by the documentary evidence and for the same reasons as it found

particular 1(g) proved.


Particular 1(j)

52. The HCPC offered no evidence and the Panel found particular 1(j) not proved.


Particular 1(k)

53.The  HCPC offered no evidence and the Panel found particular 1(k) not proved.


Particular 1(l)

54. The Registrant indicated in her notes for an appointment with Patient 12 on 12 July 2016 that a referral to

an orthopaedic consultant was required. The Registrant saved a template letter to the system, but had not

completed the letter or sent it to the patient’s GP. AS contacted the patient and sent the letter herself. The

Registrant had decided that the treatment plan for the patient required the letter and as such there would have

been an obligation on her to take the necessary action promptly.

55. The Registrant admitted in her written statement that she did not complete referrals for the patients

identified in the Allegation.

56. The Panel found particular 1(l)(i) proved by the documentary evidence, the evidence of AS and the

Registrant’s admission.

57. The patient record for Patient 12 also shows that the notes in relation to an appointment on 12 July with the

Registrant were entered into the system on 18 July 2016. The Panel found particular 1(l)(ii) proved by the

documentary evidence and for the same reasons as it found particular 1(g) proved.


Particular 1(m)

58. The Panel found particular 1(m)(i) proved by the documentary evidence and the evidence of AS. The Panel found

this particular proved for the same reasons it found particular 1(a)(i) proved.

59. There was no follow-up action recorded on SystmOne for Patient 13 following the appointment on 24 June 2016.

When Patient 13 was later contacted by AS a further physiotherapy appointment was arranged for 15 August 2016.

60. The Panel found that the Registrant had not arranged follow-up appointments for Patient 13 for the same

reasons in respect of particular 1(a)(ii). The Panel found particular 1(m)(ii) proved.


Particular 1(n)

61. The documentary evidence showed that Patient 14 attended for an appointment on 11 July 2016. The Registrant

mistakenly saved the notes in relation to the appointment on 11 July 2016 as if they related to 18 July 2016 on

18 July 2016, seven days after the appointment.

62. The Panel found particular 1(n)(i) proved by the documentary evidence and for the same reasons it found

particular 1(g) proved.

63. The record of the 11 July 2016 appointment (recorded as 18 July 2016) included the note: “request x-ray via

gp”. There was no letter to the GP created on SystmOne requesting that an x-ray be arranged.

64. The Panel found particular 1(n)(ii) proved by the documentary evidence and for the same reasons it found

particular 1(l)(i) proved.


Particular 1(o)

65. The Registrant saw Patient 15 at an appointment on 20 June 2016. She recorded notes of this appointment on 19

July 2016. Before the Registrant made these notes of the appointment, Patient 15 had contacted an administrator

and asked why her GP had not received a letter requesting an X-ray.  It appears that AS drew the inference that

the Registrant must have agreed this action with Patient 15.

66. The Panel did not draw the inference that the Registrant agreed that an X-ray was appropriate. The

Registrant’s recollection was that she did not recommend an X-ray for Patient 15 and she explained her reasoning

in detail. She referred to Patient 15’s level of activity including a particular interest in dancing, the nature

of Patient’ 15’s clinical presentation, Patient A’s medical history, and reasons not to recommend an X-ray

including the cost of the procedure. Although it would be possible for a different professional to take a

different view, the Registrant explained her reasoning confidently and clearly. The Registrant also recollected

that Patient 15 wished for an X-ray. The Panel accepted that this was an alternative explanation for Patient 15’s

telephone call.

67. The Panel found particular 1(o)(i) not proved.

68. The patient record for the appointment on 20 June were recorded in SystmOne on 19 July 2016, twenty nine days

after the appointment. The Panel found particular 1(o)(ii) proved by the documentary evidence and for the same

reasons it found particular 1(g) proved.


Particular 1(p)

69. In the treatment plan section of the notes for the appointment with Patient 16 on 7 July 2016, the Registrant

wrote: “Request G.P referral to community physio for outdoor mobility. d/c”. The Registrant did not write to the

GP or request a referral or make the referral to the Community Multidisciplinary Team.

70. The Panel took account of other referral pathways that the Registrant may have taken.  It was satisfied that

the referral from the GP was the agreed decision but was not actioned by the Registrant. 

71. The Panel found particular 1(p)(i) not proved.  It found particular 1(p)(ii) proved by the documentary

evidence and for the same reasons it found particular 1(l)(i) proved.

 

Particular 1(q)

72. The Registrant saved the notes in relation to the appointment with Patient 18 on 27 June 2016 as a “telephone

contact” when it was a face to face contact. This was not an adequate record because it was inaccurate.

73. The Panel found particular 1(q) proved by the documentary evidence.


Particular 1(r)

74. The Panel found particular 1(r) proved by the documentary evidence and the evidence of AS. The Panel found

this particular proved for the same reasons it found particular 1(a)(i) proved.


Particular 2(a)

75. The Panel carefully reviewed the notes recorded by the Registrant in relation to her appointment with Patient

17 on 2 June 2016 and identified a clear difference between this record and her records of other appointments

where she recorded under the heading “objective” a range of observations including the patient’s range of

movement. The record for Patient 17 does not have the equivalent heading, and its content is a report from the

patient of his history and symptoms.

76. Mr Smith submitted that the Registrant recorded an objective examination because she ticked a box on the form

to indicate that the patient gave informed consent. The Panel did not find that this, by itself, was a record of

an objective examination. Informed consent was required for both subjective history taking and objective

examination.


77. AS accepted in her evidence that she does not know whether the Registrant failed to carry out an objective

examination or did not record it. She did not ask Patient 17, or any of the relevant patients, about what

happened during the relevant appointment. The only parties who were present during the examination were the

Registrant and Patient 17.

78. The Registrant gave an explanation for the lack of a record of the objective examination that she did not

save her record of this part of appointment. This is a plausible explanation because of the Registrant’s lack of

full understanding of the operation of SystmOne.

79. The Panel found that the HCPC has not proved on the balance of probabilities that the Registrant did not

carry out an objective assessment.

80. The Panel therefore found particular 1(a) proved to the extent that the Registrant did not record an

objective examination for Patient 17.


Particular 2(b)

81. The notes recorded by the Registrant in relation to her appointment with Patient 18 on 27 June 2016 do not

document any objective examination of the patient. The Panel’s reasons for this conclusion are the same as its 

reasons in respect of particular 2(a).
 
82. The Panel found particular 2(b) proved on the balance of probabilities to the extent that the Registrant did

not record an objective examination for Patient 18. The HCPC has not proved that the Registrant did not carry out

an objective assessment.


Particular 2(c)

83. The notes recorded by the Registrant in relation to her appointment with Patient 20 on 28 June 2016 do not

document any objective examination of the patient. The Panel’s reasons for its conclusion are the same as their

reasons in respect of particular 2(a).

84. The Panel found particular 2(c) proved to the extent that the Registrant did not record an objective

examination for Patient 20. The HCPC has not proved on the balance of probabilities that the Registrant did not

carry out an objective assessment.

 

Decision on statutory grounds

85. The question of whether the proven facts constitute misconduct or a lack of competence is for the judgment of

the Panel and there is no burden or standard of proof.

86. The Panel considered the context and the surrounding circumstances. When she started work the Registrant was

given a Trust induction by AG. This induction did not cover policies, procedure or local guidelines specific to

the physiotherapy department. Although AG gave the Registrant some instructions on SystmOne during an induction

which took place in a morning session, he also assumed that she had some prior knowledge because of her use of

SystmOne in a community setting at the Trust. Approximately five weeks after she started work the Registrant

attended the Trust training course on the use of SystmOne. This was a generic course applicable across all

departments of the Trust. It was not role or department specific. When the Registrant asked specific questions

she was told that they were not covered by this training. The Registrant did not highlight to AG or AS any

concerns about the adequacy of the training.

87. At the time the Trust did not have a process for clinical supervision of locums or a system for auditing the

records of a locum. There was no review of the Registrant’s caseload or her ability to manage her caseload.

88. A member of the administration team reported to AG within the first few days of the Registrant starting work

that she appeared to be having problems with the systems and workload. AG’s response to this information was that

he checked a sample of the Registrant’s records and found them to be satisfactory.

89. The Registrant’s previous experience of work at the Trust was in the community setting where record keeping

can be completed at the office after undertaking a community visit. The Registrant had no prior experience of

working as a locum in a position which required her to input and save her electronic notes during a patient

appointment.

90. The Registrant was working in a busy clinic and she had a high workload. All patient appointments were thirty

minutes, including appointments for new patients.   The time for new patients had recently been reduced.  The

administrative workload when seeing a new patient was higher than for follow up appointments. The Registrant had

a high number of new patients. On one occasion she saw as many as thirteen new patients, which AS accepted would

be an excessive caseload.

91. The Panel first considered whether any of the proved particulars constitute a lack of competence. The Panel

applied the standard of competence required of a locum physiotherapist in a musculoskeletal department of an NHS

Trust. The Panel noted that there is a pattern of failures in relation to saving clinical notes. This is the

underlying reason for the failures to record clinical notes, the failures to make contemporaneous records, and

the failures to record objective assessments. These failures apply to patients 1, 2, 3, 4, 5, 6, 7, 8, 9, 12, 13,

14, 15, 17, 18, 19, and 20. The Panel was satisfied that these patients represent a fair sample of the

Registrant’s work.

92. The Panel considered that the failures were a breach of the HCPC Standards of conduct, performance and

ethics, standard 10 which required the Registrant to keep full, clear and accurate records and to complete all

records promptly and as soon as possible after providing care, treatment or other services. The failures were

also a breach of the HCPC Standards of Proficiency for Physiotherapists particularly paragraph 10 which required

the Registrant to be able to maintain records appropriately and paragraph 14.23 which required her to be able to

use information and communication technologies appropriate to her practice.

93. The Panel was satisfied that until 18 July 2016 the Registrant did not know that she was repeatedly failing

to save her notes. The Registrant noticed on one or two occasions that a note of her appointment had not been

saved. She spoke to another member of staff about this. At the time she believed that this was an isolated error,

rather than a consistent problem.

94. In the Panel’s judgment the Registrant at the time lacked the knowledge, understanding and ability to operate

SystmOne effectively. This was the reason for her failures to record clinical notes at the time of the relevant

appointment. The Panel therefore found that the failures in particulars 1(a)(i), 1(b)(i), 1(c)(i), 1(d)(i), 1(d)

(ii), 1(e)(i), 1(f)(i), 1(g)(i), 1(h)(i), 1(i)(i), 1(l)(ii), 1(m)(i), 1(n)(i), 1(o)(ii), 1(r)(i), 2(a), 2(b) and

2(c) constituted a lack of competence. These particulars did not constitute misconduct because the underlying

reason for them is the Registrant’s lack of understanding, knowledge and ability.

95. AS confirmed that there was no harm to any of the patients. AS explained in her evidence the potential risks

for patients arising from the lack of information on SystmOne. The information, is not available for the use of

other health professionals involved in the patients care. There may also be delays in providing services required

for the patient’s care pathway.

96.  The Panel next considered the remaining particulars which are not attributable to a failure to save records

using SystmOne. The Panel decided that none of the remaining particulars constitute a lack of competence. The

Registrant was an experienced physiotherapist with good clinical abilities. She had the knowledge and ability to

take appropriate follow up action and make referrals.

97. There is no statutory definition of misconduct, but the Panel had regard to the guidance of Lord Clyde in

Roylance v GMC (No2) [2001] 1 AC 311: “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…”. The conduct must be serious in that it falls well below the required standards.

98. The Panel decided that particulars 1(c)(ii) and 1(d)(iii) are not sufficiently serious to constitute

misconduct. Although there was a failure to complete a discharge letter, the Registrant’s understanding was that

the patients could be placed on a discharge list unless there was any special information which needed to be

communicated to the GP. The Registrant’s culpability is low, there is evidence that AG as her Line Manager

appeared to be following the same custom and practice, and there was no harm to the patients.

99.  The Panel also decided that particular (q)(i), the recording of the appointment of 27 June as a telephone

contact when it was a face to face appointment, is not sufficiently serious to constitute misconduct. It is an

isolated administrative error with no consequence for patients.

100. The Panel next considered the failures to arrange follow up action, follow up appointments and referrals.

Although there was no harm to any of the patients, there was delay in making the relevant referrals or taking the

appropriate action and therefore there was a potential risk of harm to patients.

101.  The Panel took into account the context in which the Registrant was working. Nevertheless, in the Panel’s

judgment the Registrant failed to give appropriate priority to the need to complete referrals, arrange follow up

appointments and take follow up action. Her failures put patients at risk, which is unacceptable and well below

the standards for physiotherapists.

102.  The Panel found that the Registrant’s failures were in breach of the HCPC Standards of conduct, performance

and ethics standard 2.6 which required the Registrant to share relevant information, where appropriate, with

colleagues involved in the care, treatment or other services provided to a service user.

103. The Panel concluded that the Registrant’s failures in particulars 1(a)(ii), 1(e)(ii), 1(f)(ii), 1(l)(i), 1

(m)(ii), 1(n)(ii), and 1(p)(ii), were sufficiently serious to constitute misconduct.

 

Decision on impairment

104. The Panel accepted the advice of the Legal Assessor and had regard to the HCPTS Practice Note “Finding that

Fitness to Practise is Impaired”. The Panel considered the Registrant’s fitness to practise at today’s date.

105. On behalf of the Registrant, Mr Smith accepted that her fitness was impaired in 2016, but submitted that it

is no longer impaired.

106. The Registrant is currently working as a physiotherapist for three football clubs. She began employment with

Doncaster Rovers in January 2011 and continues to be employed there. She is also employed by Goole AFC, on a part

time basis and in August 2018 she started work at Chesterfield Football Club. During the latter part of 2017 and

the early part of 2018 the Registrant had a period of ill health. She continued to work for the football clubs,

but undertook more limited duties.

107.The Registrant told the Panel that she does not intend to work in the NHS again in an acute setting. She

described the role she undertakes for the football clubs as being a completely different from the role of a

physiotherapist working in a musculoskeletal department of an NHS hospital.

108. The Registrant provided references from each of the three football clubs. There have been no complaints or

issues arising from her employment and no concerns about her administration skills. At Doncaster Rovers the

Registrant has been required to provide her records for an audit undertaken by the Football Association. The club

satisfactorily passed the audit and was highly rated.

109. The Registrant told the Panel that after the events at the Trust in 2016 she undertook CPD which focused on

the failures identified by AS. In particular she studied the HCPC Code of Conduct and guidance produced by the

Chartered Society of Physiotherapists.

110. None of the football clubs the Registrant works for currently operates a system equivalent to SystmOne. The

clubs are moving towards the use of an electronic record keeping system called PMA, but the Registrant continues

to use paper records which she stores securely. She ensured that she entered sufficient information onto the PMA

record keeping system to satisfy the requirements of the Football Association audit, but she continues to retain

paper notes and only enters the minimum necessary onto the PMA system. In answer to Panel questions the

Registrant said she is wary of electronic record keeping. She said that if she was required to use the PMA record

keeping system, she would ensure that it was tailored for her use and that she was given proper training.

111. The Panel considered the level of the Registrant’s insight. When the issues were first drawn to her

attention, she immediately apologised and expressed remorse. She was visibly upset and distressed. She repeated

her apology in her written statement. In her evidence she recognised that her failures had the potential to cause

delay and impact on patient care. Nevertheless, the Panel considered that the Registrant has not reflected fully

on the underlying reasons for her misconduct and the potential implications for patient safety. She was not

coping with her workload, but she failed to take action to alert her managers to her difficulties.  The Panel was

not satisfied that she had developed sufficient insight as to her professional responsibilities in relation to

the deficiencies in her practice. 

112. The lack of competence and misconduct found by the Panel are remediable. The Registrant has taken some

remedial steps, but in the Panel’s judgment the remediation is not complete. She has not undertaken specific

training in relevant areas such as workload management and record keeping.  The Registrant remains wary and

distrustful of electronic records as the primary system for recording patient notes. Although she is confident in

her day to day work in her current role, she has not yet been able to demonstrate her ability to learn and use a

new electronic record keeping system as the primary note keeping system.

113. The Registrant has also not demonstrated that she has taken remedial action in developing coping strategies

if she were to work in an environment where she was subject to a high workload or high levels of stress. Her

approach is that she will not put herself in that situation again, but she has not addressed the steps she would

need to take if she was subject to the same kind of pressures. The Panel is making an assessment as to whether

the Registrant is currently fit to practise without restriction in all possible environments, whether or not she

is currently working in those environments.

114. The Panel’s assessment is that there is a risk of repetition of the Registrant’s failures if she was working

in a stressful high workload environment, particularly if she was required to use an electronic record keeping

system. The Registrant might work in this environment in the future even if she remained working in the field of

football physiotherapy. For example, she might progress to work for a Premiership club.

115. The Panel therefore found that the Registrant’s fitness to practise is currently impaired on the basis of

the personal component.

116. The Panel next considered the wider public interest considerations including the need to uphold standards of

conduct and behaviour and the need to maintain confidence in the profession and the regulatory process.

117. An informed member of the public would be primarily concerned about the potential risk to patients, both in

the past and in the future. They would be concerned about the number of missing or incomplete patient records and

about the potential delays to patient care because of the failure to make the appropriate referrals and take the

necessary follow up actions. They would be surprised if the Registrant was free to practise unrestricted, where

the remediation is not yet complete and there remains a risk of repetition.

118. The Panel therefore found that the Registrant’s fitness to practise is currently impaired on the basis of

the public component.

 

Decision on sanction

119. In considering which, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions

Policy (ISP) and the advice of the Legal Assessor.

120. The Panel reminded itself that the purpose of imposing a sanction is not to punish the practitioner, but to

protect the public and the wider public interest. The Panel ensured that it acted proportionately, and in

particular it sought to balance the interests of the public with those of the Registrant, and imposed the

sanction which was the least restrictive in the circumstances commensurate with its duty of protection.

121. The Panel heard submissions from Mr Dite and Mr Smith. Mr Smith referred the Panel to further documentation

provided by the Registrant.

122. The first document was a letter from JK, Academy Operations Manager of Chesterfield Football Club dated 16

August 2018. JK writes in support of the Registrant and confirms that he has been in regular contact with her

during the hearing. He states that: “As Chesterfield FC Academy PMA super user I will undertake 6 weekly formal

review and mentoring with Claire regarding its use. I will also arrange for her formal training by the clubs PMA

Client Manager with regards to her becoming a super user. I will organise this with immediate effect on Claire’s

return to normal day to day working environment should sanctions allow her continued practise”.

123. The second document was an email dated 16 August 2018 from the Registrant sent to a course provider advising

that she wished to book CPD hours in relation to time management skills, personal performance within a high

pressure environment, and coping strategies with regards to personal performance.

124. Mr Smith informed the Panel that the Registrant has also made an enquiry with a course provider about a

course entitled “essential time management training to help organise your tasks and reduce stress” and related

courses.

125. The Panel considered that the response of the Registrant to the Panel’s decision demonstrated that she has a

good understanding of the steps required to complete remediation and that she is willing and determined to take

the necessary action. The Panel were also pleased to note the supportive response from JK, which indicates that

the Registrant is a valued member of staff.

126. The Panel decided that the aggravating features were:

• the Registrant’s incomplete insight and remediation;

• the number of patients involved;

• the potential for patient harm.

127. The Panel decided that the mitigating features were:

• the Registrant’s working environment and high workload;

• limited training and supervision;

• no previous concerns about the Registrant’s practice;

• positive testimonials and no concerns about subsequent practice.

128. The Panel considered the options of taking no action and a Caution Order, but decided that they would not

address the risk of repetition the Panel has identified. Mr Smith in his submissions recognised that neither

option would address the need for the completion of remediation.

129. The Panel next considered a Conditions of Practice Order. The Panel decided that the risks in this case

could be addressed by conditions of practice. The Panel also decided that a Conditions of Practice Order would be

sufficient to mark the seriousness of the misconduct and lack of competence in this case. Members of the public

would be reassured that the Panel had taken appropriate and proportionate action to ensure that the ongoing risk

to the public is managed and that the Registrant continues to take the necessary remedial steps as part of a

supportive and controlled process with a review after an appropriate period of time.

130. The Panel had sufficient confidence that the Registrant will comply with conditions of practice. She has

demonstrated her motivation and determination by acting swiftly in response to the Panel’s decision yesterday in

regard to finding current impairment.

131. The Panel identified workable and appropriate conditions requiring the Registrant to undertake training, and

work towards to the completion of a personal development plan under a supervisor or mentor. The conditions are

directed at remediating the deficiencies in the Registrant’s practice as found by the Panel.

132. The Panel did not consider that it was necessary in this case to specify particular courses which the

Registrant must undertake. The Panel was satisfied from the documentation provided by the Registrant that she has

a good understanding of the areas the training should cover.

133. The Panel considered whether it was necessary for the Registrant to be subject to clinical supervision by an

HCPC registered supervisor. The Panel decided that this was not required. The deficiencies in the Registrant’s

practice do not involve any area of clinical skill or knowledge. They concern administrative matters. It was

sufficient in this case for the Registrant to be supervised or mentored by one or more of her current managers.

134. The Panel decided that the appropriate and proportionate length of time for the Conditions of Practice Order

is twelve months. A review will take place before the Conditions of Practice expires. A twelve month period is

realistic to allow time for the completion of training courses, completion of the personal development plan, and

preparation of evidence for the review.


135. The Panel considered the more serious option of a Suspension Order, but decided that it would be

disproportionate. A Suspension Order is not required in this case because the Panel was satisfied that the risk

to the public is managed by conditions of practice. It was also in the public interest that the Registrant to be

permitted to continue to use her skill and experience as a physiotherapist, providing valuable services to her

employers.


136. The Panel therefore decided that the appropriate and proportionate sanction was a Conditions of Practice

Order for a period of twelve months.

 

 

Order

ORDER: The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date

that this Order comes into effect you Claire Swindell, must comply with the following conditions of practice:

1. You must satisfactorily complete training courses which address the following areas of deficiency identified

by the Panel:

(i) use of electronic record keeping

(ii) time management and/or working in a high pressure environment and/or coping strategies

2. You must provide send to the HCPC evidence that you have completed training courses at least two weeks prior

to the date fixed for the review of the Order.

3. You must place yourself and remain under the supervision of at least one supervisor or mentor. You must attend

upon that supervisor as required and follow their advice and recommendations.

4. You must work with your supervisor or mentor to formulate a Personal Development Plan designed to address the

deficiencies in the following areas of your practice:

(i) electronic record keeping

(ii) time and workload management

(iii) coping strategies

5.You must promptly inform the HCPC if you cease to be employed by your current employers or take up any other or

further employment.

6. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.

7. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with (at the time of application); and

C. any prospective employer (at the time of your application)


This order will be reviewed again before its expiry on 14 September 2019. 

Notes

An Interim Conditions of Practice Order for a period of 18 months was imposed to cover the appeal period. 


 

 

 

Hearing History

History of Hearings for Miss Claire Swindell

Date Panel Hearing type Outcomes / Status