Miss Julie A Mills

Profession: Chiropodist / podiatrist

Registration Number: CH14235

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 Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

(As amended)

1. During the course of your employment with Pennine Care Foundation Trust (the Trust), you removed the following patient documentation from the Trust, without the consent of the patients and/or the Trust:

a) approximately 19 print outs/clinic lists

b) a front cover of a fax from a GP surgery, from a patient's record

c) patient clinical case notes dated

(i) 15 June 2012 to 24 January 2014

(ii) 12 March 2014

 

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

 

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

 

Finding

Preliminary Matters

Proof of service

1. The HCPC sent a Notice of Hearing to the Registrant’s registered address on 22 May 2018. The Notice set out all the relevant information about today’s proceedings. The Panel was therefore satisfied that service had been effected in accordance with the Rules.

Proceeding in the absence of the Registrant

2. Mr Ferson applied for the hearing to proceed in the Registrant’s absence. He submitted that the Registrant is aware of these proceedings as evidenced by her various communications. He stated that she had clearly indicated in writing that she would not be attending this hearing. Mr Ferson also referred to the most recent email communication from the Registrant where she explains upsetting personal information which was also preventing her from attending. However, he submitted that whilst those circumstances were deeply upsetting for the Registrant, all the communication to the HCPC prior to notification of the personal circumstances of the Registrant, was that she would not be attending.

3. Mr Ferson submitted that the Registrant has therefore waived her right to be present. Mr Ferson submitted that the Registrant had not applied for an adjournment and it was therefore appropriate to proceed in her absence.

4. The Panel had regard to the most recent HCPTS Practice Note on proceeding in absence (dated September 2016) and it had also took account of the advice of the Legal Assessor who referred the Panel to the factors considered in the case of R v Jones and the case of Adeogba v GMC and, in particular, the observation of Sir Brian Leveson:

“It would run counter to the protection, promotion and maintenance of the health and safety of the public if a practitioner could effectively frustrate the process and challenge a refusal to adjourn when that practitioner had deliberately failed to engage in the process…Where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed.”

5. The Panel considered that it is appropriate to proceed in the absence of the Registrant. The Registrant has engaged well with this process. However, in coming to this decision, it had regard to the Registrant’s communications dated 27 June 2018 and 28 July 2018 where she indicated that she would not be attending this hearing.

6. The Panel also had regard to the email from the Registrant in which she refers to the potential adverse effect that these proceedings are having on her health. The Panel accepted that hearings such as these are stressful for registrants, but there is no evidence before the Panel for it to infer that the hearing should be adjourned on health grounds. 

7. Further, the Panel carefully considered whether the recent personal circumstances of the Registrant were the main cause for her non-attendance. It noted that the HCPC had written to her asking her if she wished to attend the hearing via an alternative means other than personal attendance in London. The HCPC also wrote and informed the Registrant, after she informed them of her recent personal circumstances, that she could apply for an adjournment. There has been no response from the Registrant to that letter inviting her to apply for an adjournment if she wished to do so.

8. The Panel also took into account that there was a witness in attendance for the hearing. The Panel concluded that there is a public interest in proceeding with this case and no useful purpose would be served by this matter not going ahead.
 
Application to amend the Allegation

9. The HCPC applied to amend Particular 1c) by removing the words “2 sets of” from the sentence. The proposed amendment was notified to the Registrant in a letter dated 20 March 2018. The Registrant has not objected or responded to that proposed amendment.

10. Mr Ferson submitted that the amendments would not prejudice the Registrant. The Registrant has not responded to the proposed amendment. As regards to the amendment he proposes, Mr Ferson suggested that it serves to simplify that Particular of the Allegation.

11. The Panel noted that the Registrant has not responded to the proposed amendment. The Panel went on to consider whether there would be any prejudice to the Registrant if the amendment was permitted. The Panel considered that the proposed amendment was not significant and that it did not change the nature and substance of the Particular. In those circumstances, there would be no injustice to the Registrant, and the Panel determined to amend the Allegation as set out in the letter dated 20 March 2018.

Proceeding in private

12. At the outset of the hearing, Mr Ferson made an application that those parts of the hearing which referred to the Registrant’s health should be heard in private. He anticipated that he would not be asking any questions pertinent to health but it was possible that the witness may refer to the Registrant’s health.

13. The Panel was mindful that the presumption remains that this is a public hearing. However, it reminded itself of Rule 10(1) of the Rules and of the Registrant’s right to a private life. Having accepted the Legal Assessor’s advice, the Panel came to the decision that, in this instance, the Registrant’s interests outweighed the public interest. As such, the Panel granted the application that any evidence relating to the Registrant’s health would be heard in private.

Registrant’s application to secure a witness summons in respect of two witnesses

14. The Registrant made two applications for witness orders which were brought to the attention of the Chair on 9 August 2018.  Given the late application, the matter was considered on the first day of the hearing. The first application related to CM, an employee at the Trust. The second related to Patient R.

15. Mr Ferson set out the background to the application. The HCPC opposed the application for a witness order for both witnesses. He submitted that the evidence of CM has no direct relevance to the allegations to be considered in this case. In any event, he submitted that Kingsley Napley had obtained the evidence sought by the Registrant (an original email) as it was appreciated that it could be relevant to the issue of LT’s credibility. CM had provided the original email sought and it is confirmed that the email has not been altered by anyone, including LT. He therefore submitted that a witness order was no longer necessary. In respect of Patient R Mr Ferson submitted that the HCPC does not hold contact details for Patient R. These would need to be obtained from the Trust. Kingsley Napley had asked the Trust to ensure that contact details are available in the event that an order is made, so that the matter can be expedited, if necessary. In any event Mr Ferson submitted that the conversations between various people and Patient R were not directly relevant to the allegations to be considered by the Panel. The conversations related to what Patient R was told about the Registrant’s absence from work and therefore, something unrelated to the allegation of taking patient information. Mr Ferson invited the Panel to reject the applications.

16. In coming to its decision on the application, the Panel had regard to the legal advice and the Guidance on witness orders set out in the HCPTS’s Practice Note of 22 March 2017, entitled “Witness and Production Orders”. The Panel was of the view that a witness order was not necessary for CM as she provided her original email that she had provided to LT and the Panel was satisfied that it could compare the documents itself without the need for CM to be called as a witness. Further the Panel concluded that what was said to Patient R by other members of staff was not relevant to an allegation in this case, and it further considered that it did not consider that it would be of assistance in determining LT’s credibility or reliability.

17. The Panel rejected the applications.

Application to reopen the HCPC’s case after the close of the case

18. During the course of the HCPC’s closing submissions, the Chair drew to the attention of Mr Ferson a discrepancy in the evidence. Mr Ferson took instructions and applied to reopen his case so that he could recall his witness to address the discrepancy.

19. The Legal Assessor referred the Panel to the HCPC Fitness to Practice Rules, the case of Jolly v DPP (2000) (CO/1193/1999) and the case of Ladd v Marshall [1954] EWCA Civ 1.

20. The Legal Assessor advised that whilst rule 10(4) of the FTP rules states: “At the beginning of any hearing the Chair shall explain to the parties the order of proceedings which the Committee proposes to adopt and, unless the Committee determines otherwise, the parties shall be heard in the following order……”, the term “unless the committee determines otherwise” should not be used as a ‘trump card’ without more, to override the express provisions within the rules. She advised the Panel that it had the discretion to permit the HCPC to reopen its case; ultimately it had to act fairly reasonably and proportionately. 

21. The Panel’s attention was drawn to the principles set down in the case of Ladd v Marshall [1954] EWCA Civ 1: 

“1. It must be shown that the evidence could not have been obtained with diligence for use at the trial.

2. The evidence must be such that if given it would probably have an important influence on the result of the case, though it need not be decisive.

3. The evidence must be such as is presumably to be believed, or in other words it must be apparently credible though it need not be incontrovertible.”

22. The Panel also had regard to the case of Jolly where it was noted that the exercise of a discretion to reopen a case was to be exercised “sparingly”.

23. The Panel determined that it would not permit the HCPC to reopen its case at such a late stage. The HCPC brings the case and it has had the evidence for a significant period of time. Whilst the witness was giving evidence that was the time to explore any inconsistencies.

Background

24. The Registrant was employed as a Band 6 Podiatrist for Heywood, Middleton and Rochdale Podiatry Service at Pennine Care Foundation Trust (the Trust) from 6 May 2006 until 14 April 2014. Following her dismissal from the Trust on 14 April 2014, an Employment Tribunal claim was made by the Registrant. As part of this claim, certain patient records were received by the Trust from the Registrant’s solicitor. The Trust maintained that permission to remove the documents from Trust premises was never provided to the Registrant. In light of this, the Trust subsequently made a referral to the HCPC in December 2015. The case was considered initially by an Investigating Committee on 18 November 2016, and after obtaining further evidence, it was considered by a second Investigating Committee on 2 February 2018 which determined that there was a case to answer.

Decision on Facts

25. In coming to its decision on facts the Panel had regard to all the evidence, both oral and documentary. It took into account the oral submissions of Mr Ferson and it also had regard to the very detailed written submissions of the Registrant, along with her witness statement and accompanying documents, including the Investigating Committee bundle that she wished the Panel to see. 

26. The Panel was reminded that it is for the HCPC to prove its case and that there was no burden on the Registrant to prove anything. The standard of proof applied when considering whether the allegations are made out, is that of the balance of probabilities.

27. The Panel accepted the advice of the Legal Assessor. The Panel drew no adverse inference from the Registrant’s non-attendance.

28. The Panel heard from one witnesses of fact called by the HCPC; LT who was the Allied Health Professional Manager at the Trust at the time of these events.

29. The Panel found LT to be a straight forward witness who gave evidence to the best of her recollection. It was apparent from her evidence that there were a number of facts and dates she simply could not recall due to the passage of time. The Panel bore in mind that an honest witness can be mistaken.

Particular 1a)

30. The Panel had regard to the documentary evidence before it including the evidence of LT. She explained that she saw the clinic lists in the bundle of documents that was provided by the Registrant’s solicitor to the Trust during the course of an Employment Tribunal. She stated that the documents were unredacted so that you could clearly see patients’ names, dates of birth and NHS numbers. The Panel explored with LT the discrepancy between the two exhibits in the Council’s bundle which presented the clinic lists because there was in one exhibit a list of 16 and in the other a list of 19. LT explained that the original referral to the HCPC included 16 clinic lists which had been redacted by the Trust. The HCPC then requested unredacted lists and LT believes that the Corporate Services department of the Trust, which dealt with that request, may have duplicated some lists.

31. LT stated that she had asked a member of the Administrative staff at the Trust to print off a number of clinic lists that the Registrant’s union representative had identified as being relevant to a capability hearing. LT said that these documents were printed off, shown to the Registrant at the Trust on 22 January 2014, and would not have been sent to her by post as asserted by the Registrant. LT said that a letter was sent to the Registrant on 28 January 2014 by her which summarised the content of the meeting she had had with the Registrant on 22 January 2014. In questioning by the Panel, LT’s attention was drawn to this letter. She stated that no attachments were sent with the letter. However, it was highlighted to LT that there is reference in the letter to documents being attached. LT stated again that the clinic lists would not have been attached.

32. The Panel compared the exhibits and it accepted that there was a degree of duplication of the clinic lists in that there was a record of 16 and not 19 clinic lists as alleged. However, the Panel was also concerned that a number of these clinic lists were printed after the meeting between LT and the Registrant on 22 January 2014. In total the Panel found that there were 7 clinic lists that were printed after that meeting, namely on 23, 27 and 28 January 2014.

33. On balance the Panel accepted that a number of clinic lists were sent in the post to the Registrant. The Panel therefore found that 7 of the 16 clinic lists were sent to the Registrant by post and were not removed from the Trust by the Registrant.

34. The Panel therefore went on to consider the rest of the evidence pertaining to the 9 other clinic lists. The Registrant accepted in her written statement that “the clinic lists at D2….were printed by me in 2012…” In the Registrant’s written representations dated 20 October 2016 she accepted she printed clinic lists “in June 2012 and found [them] in an old diary when compiling evidence for the Tribunal.” In respect of other clinical notes she states at paragraph 30 of her witness statement to the Panel “…I photocopied the patient notes at (D21) and (D22) and printed the clinic lists….which I put in my tray at work in case they ‘mysteriously vanished’ and submitted a grievance…to my employer.” She goes on to state “just wanting to get away, I lifted the contents of my tray and left completely forgetting the clinic lists from 2013 and photocopied notes were there.” When referring to her Employment Tribunal claim, she states that her solicitor had asked for evidence. She stated that “it was only then I discovered I had the PID [s]…in my possession”. The Panel also had regard to the Registrant’s submissions to the Investigating Committee where she identifies in a schedule the documents that she accepted that she printed off.

35. Based on the evidence before it the Panel concluded that it had only been presented with the evidence that the Registrant removed 9 clinic lists without the consent of patients or the Trust.

36. This Particular is therefore found proved in part.

Particular 1b)

37. The Panel had regard to the Registrant’s witness statement where she accepted that she had taken the fax which was in her tray when she removed all of the contents of the tray. Further, in the Registrant’s written submissions to the Investigating Committee she stated that the fax was in her intray.
38. The Panel is satisfied based on the evidence before it that the Registrant removed a copy of the fax which had been sent from a GP surgery, containing patient information without the consent of the patient or the Trust.

39. This Particular is proved.

Particular 1c(i)

40. The Panel had regard to the documentary evidence before it. It was provided with the clinical notes of a patient which covered the period 15 June 2012 to 24 January 2014. In the Registrant’s representations to the Investigating Committee she stated that she did not remove the patient’s file but only copied the notes. She goes on to state “my intention was to present it as evidence as part of a grievance which never occurred…and was in case the notes ‘mysteriously vanished’ which often occurred at this Trust”. The Panel also had regard to an email within the Investigating Committee bundle. The email is from the Registrant to her solicitor, who was dealing with her Employment Tribunal claim, where she refers to the patient’s medical records as being “evidence”. The Panel found that the Registrant’s reason for gathering the patient details was not to make any protected disclosures but to gather evidence for her own employment case against the Trust.

41. This Particular is proved.

Particular 1c(ii)

42. The Panel had regard to the documentary evidence before it. It was provided with the clinical notes of a patient which related to 12 March 2014. Again, in the Registrant’s representations to the Investigating Committee, she stated that she had photocopied the notes. She again confirms “my intention was to present it as evidence as part of a grievance which never occurred…and was in case the notes ‘mysteriously vanished’ which often occurred at this Trust”.

43. The Panel also had regard to an email within the Investigating Committee bundle. Once again, the Panel took into account the email from the Registrant to her solicitor who was dealing with her Employment Tribunal claim, where she refers to the patient’s medical records as being “evidence”. The email reads “why have you disclosed patients’ medical records with mine when these were provided to you as evidence??????” The Panel found that the Registrant’s reason for gathering the patient details was not to make any protected disclosures as she submits, but rather to gather evidence for her own employment case against the Trust. The records had been sent to her solicitors unredacted.

44. This Particular is found proved.

Decision on Grounds

45. On the basis of the facts found proved the Panel went on to consider whether those facts amounted to misconduct. It took into account the submissions made by Mr Ferson on behalf of the HCPC and those submissions, in writing from the Registrant where relevant to the issue of misconduct. The Panel also had regard to the advice of the Legal Assessor. The Panel noted that, in considering misconduct, it exercised its own judgement.

46. The Panel also took into account the public interest which includes protection of patients, maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour.

47. The Panel first considered whether the facts found proved amounted to misconduct. The Panel considered the HCPC Standards of Conduct, Performance and Ethics (the 2012 edition). It considers that the Registrant breached in relation to the 2012 edition: 
 
Standard 1: You must act in the best interests of service users.

Standard 2: You must respect the confidentiality of service users.

48. The Panel noted that the Registrant could have taken advantage of the Trust Disciplinary policy which states at section 3.2.4:

“Any employee subject to disciplinary proceedings, or their representative, has a right of access to all documentation and other information relevant to the proceedings. All parties will co-operate regarding the disclosure and timely provision of documentation.”

49. There was therefore no justification for the Registrant printing and removing unredacted clinic lists and patients’ notes. These could have been requested through proper channels.

50. The Panel also noted that the Registrant breached the Trust Information Security Policy, which states at section 3.10:
“1. Each Trust employee is personally responsible for ensuring that no breaches of information security result from their actions.
3. Information is a major asset of the Trust. All staff have a duty and responsibility to the Trust, it’s patients/clients and to fellow colleagues to protect this asset from unauthorised use, disclosure, access, modification and destruction.
4. Under no circumstances can staff sell or otherwise disclose Trust information for personal profit or gain.
5. Each employee must ensure that the person receiving information is authorised to receive it, where there are doubts checks should be made to ascertain the identity of the recipient prior to disclosure.”

51. The Panel considered that the Registrant’s conduct fell far short of the standard expected of a registered Podiatrist. She removed confidential information about patients from the Trust without the permission of the patients or the permission of the Trust. It is clear from her extensive written submissions that the sole purpose of retaining the documents was to further her own Employment Tribunal claim against the Trust. Such a breach had the potential to cause alarm to patients, knowing that their personal details were being used for a purpose to which they had not consented. The Panel had no hesitation in concluding that the Registrant fell far short of the standards that are expected of a registered Podiatrist and amounted to misconduct.

Decision on Impairment 

52. The Panel took into account that the purpose of these proceedings is not to punish or re-punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not currently fit to practise. In approaching this task the Panel applied its own professional judgment. The Panel had regard to the practice notes issued by the HCPTS (Finding that Fitness to Practise is Impaired and Fitness to Practise: What does it mean). The Panel took account of the case of the CHRE v Grant [2011] which reminds panels of the need to consider the public interest. 

53. The Panel also considered the case of Cohen v GMC [2008]. In particular, it had regard to whether the conduct identified is capable of being remedied, whether it has been remedied, and whether it is likely to be repeated.

54. In respect of the personal component of impairment, the Panel considered that the Registrant has not demonstrated any insight. In her detailed submissions she continues to blame the Trust for how she was treated. Even though she accepts that she removed the documents, and that she was intending to use them for her own personal reasons, (for a grievance process with the Trust), she fails to show any insight as to the potential impact that the removal of the documentation would have for the Trust or the potential for alarm to patients that their personal information may be used without their permission. There is no evidence from the Registrant that she accepts that she had done anything wrong. The Panel considered that the misconduct identified in this case is easily remediable by way of learning through attendance at courses or eLearning. There is no evidence that such learning has been undertaken. Therefore there remains a risk that misconduct could be repeated.

55. The Panel went on to consider the public component of impairment. These were very serious failings and they were repeated. The Panel considered that the public and the profession would not expect a registered Podiatrist to remove patient information from the Trust and use it for their own purpose without the permission of the patients or the Trust. The misconduct identified in this case is totally inappropriate and a clear message is required to be sent to the public and the profession that such behaviour is unacceptable. 

56. This conduct undermines public confidence in the profession and a finding of current impairment is required to uphold proper professional standards of conduct and behaviour and to maintain confidence in the regulator.

57. The Panel therefore concluded that the Registrant’s fitness to practise is currently impaired.


Decision on Sanction

58. In considering what, if any, sanction to impose the Panel had regard to the HCPC Indicative Sanctions Policy and the advice of the Legal Assessor. It also took into account Mr Ferson’s oral submissions and the written submissions of the Registrant. 

59. The Panel notes that the purpose of fitness to practise proceedings is not to punish the Registrant for past misdoings but to protect the public against the acts and omissions of those who are not currently fit to practise. 

60. In considering the appropriate sanction, if any, the Panel had regard to the aggravating and mitigating factors in this case. In mitigation the Panel noted that the Registrant has actively engaged with the HCPC process. There was no actual patient harm in the conduct identified in this case and the Panel accepts that, at the time of the events in question, the Registrant was undergoing a capability process in the work place. 

61. There are a number of aggravating factors in this case. The Panel noted the extent of the patient information that was removed without consent, including people’s names, date of births, NHS numbers and a copy of two patients’ clinical records. The Registrant lacks insight, expresses no remorse and the Panel has already concluded that there is a risk of repetition of the misconduct found proved. Finally, the Panel was also concerned by the fact that the Registrant took the patient records for her own use in the proceedings of her own Employment Tribunal claim, and it was not inadvertent disclosure.

62. The Panel considered that, given the seriousness of the misconduct and the risk of repetition, it would be inappropriate to take no action. The Panel went on to consider the available sanctions in ascending order. Mediation was not appropriate for the circumstances of this case.

63. The Panel next considered whether a Caution Order would be sufficient. A Caution Order would not restrict the Registrant’s ability to practise and it would not mark the seriousness of the misconduct identified. 

64. The Panel then considered whether the imposition of a Conditions of Practice Order would be sufficient. It took into account that a Conditions of Practice Order is appropriate where the Registrant is genuinely committed to resolving the issues identified in the case. However, the Panel has already found that the Registrant has shown no insight. Further it is clear from her extensive submissions that she continues to seek to justify her actions. She has offered no apology and there is no evidence from the Registrant demonstrating that she has considered the impact her actions may have had on the patients and the profession as a whole. The Panel concluded that it would have no confidence that the Registrant would comply with conditions. The Panel concluded that a Conditions of Practice Order would not be practicable or workable.

65. The Panel then went on to consider the imposition of a Suspension Order. Such an order would provide public protection and would send a clear message to the public and the profession as to the unacceptability of breaching data confidentiality. The Panel also considered that the misconduct in this case is remediable and a period of suspension will allow the Registrant to remedy the misconduct identified in this case.

66. The Panel concluded that a Suspension Order would reflect the seriousness of the case and would uphold standards and maintain confidence in the profession of Podiatry.

67. The Panel did consider the imposition of a Striking-Off Order. However such an order would be disproportionate in this case, as the misconduct identified was not at the most serious end of the scale and it was remediable.

68. In coming to its decision the Panel took into account the public interest which includes protection of patients, maintenance of public confidence in the profession and the declaring and upholding of proper standards of conduct and behaviour. A Suspension Order is sufficient to address these.

69. A Suspension Order prohibits the Registrant from practising in her chosen profession. The Panel considered the impact which the Suspension Order may have on the Registrant, but noted that she is not currently practising Podiatry and states that she has no plans to do so.

70. The Panel concluded, that a Suspension Order for 12 months is the most appropriate and proportionate Order. This period of 12 months will allow the Registrant to remedy the misconduct identified if she so chooses.

71. Before the expiry of this Order there will be a review of it. The reviewing panel may be assisted by:
• A reflective statement on the impact that the Registrant’s misconduct may have had on patients and the profession as a whole;
• Any evidence of training or courses attended by the Registrant which addresses the misconduct identified;
• Any evidence of professional skills and knowledge being kept up to date.

Order

That the Registrar is directed to suspend the registration of Miss Julie A Mills for a period of 12 months from the date this order comes into effect.

Notes

This order will be reviewed again before its expiry on 13 September 2019.

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

Hearing History

History of Hearings for Miss Julie A Mills

Date Panel Hearing type Outcomes / Status
13/08/2019 Conduct and Competence Committee Review Hearing Struck off
13/08/2018 Conduct and Competence Committee Final Hearing Suspended