Mrs Hazel Bryce

Profession: Occupational therapist

Registration Number: OT33284

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: Caution

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Allegation

Whilst registered as an Occupational Therapist, and during the course of your employment at Sheffield Health and Social Care NHS FoundationTrust:

1. In approximately July 2015, you had sexual intercourse with Colleague A in Service User A's home.

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:


1. The substantive hearing of the HCPC’s allegation against the Registrant commenced on 14 May 2018.  However, at an early stage on that day it was agreed by all concerned that it would be necessary for the witness known as “Colleague A” to attend the hearing to give live evidence.  Attempts made by the HCPC shortly before that hearing to secure Colleague A’s attendance had not been successful.  It was therefore inevitable that the hearing would be adjourned before the HCPC’s case could be concluded.  The Panel made directions for the future conduct of the case, including a direction that the Panel Chair should be asked to sign a witness order compelling the attendance of Colleague A at the reconvened hearing.


2. The Panel did, however, receive the evidence of SM during the hearing held in May 2018.


3. At the commencement of the hearing the Registrant was given an opportunity to respond to the allegation.  When inviting a response the Panel Chair said to the Registrant’s Representative, “So does Ms Bryce admit, or deny that ,on the facts?”  He replied, “No”.


Background:


4. In 2015 both the Registrant and Colleague A were employed by Sheffield Health and Social Care NHS Foundation Trust (“the Trust”) working in the Sheffield Outreach Team (“SORT”).  The Registrant was employed as an Occupational Therapist.  Colleague A had a different professional background, and it is relevant to the issues the Panel has been required to decide to record the fact that his role included offering a specific specialist therapy to SORT service users.  At the relevant time, both were working at Band 7.


5. On 16 August 2015, the Registrant made a complaint to the Trust concerning Colleague A.  On 14 September 2015, she made a complaint about Colleague A to the regulator of his profession that contained much more detail than that originally sent to the Trust.  On 21 October 2015, the Registrant’s trade union sent to the Trust further details of her complaint concerning Colleague A, the terms of this document being substantially similar to that sent to the regulator.  In none of these documents did the Registrant make explicit reference to the incident alleged by the HCPC in this case by particular 1 of the allegation, namely the contention that the Registrant and Colleague A had had sexual intercourse at the home of a service user in July 2015.


6. It became known that in July 2015, (there now being unanimity that the date was 8 July 2015) the Registrant intended to visit the home of Service User A, who was hospitalised as a result of acute mental ill health, in order to collect items.  On the way to the Service User’s home she met by chance Colleague A, who was on sick leave at the time.  Subsequently, they went to the home of Service User A where they had sex.


7. An event that occurred a month after the visit to Service User A’s home is relevant to the issues to be decided by the Panel.  Early in the morning of Saturday 8 August 2015, Colleague A visited the Registrant’s home.  After going to a bedroom, and his clothes being removed, a man entered the bedroom and photographed Colleague A.  The man who entered the room was the person who has represented the Registrant in the present proceedings.  Later that day compromising photographs of Colleague A were sent to his wife.  The discovery by Colleague A’s wife of his involvement with the Registrant had far-reaching and negative consequences for Colleague A.


Decision on Facts


8. Three witnesses gave evidence before the Panel.  The HCPC called SM, by profession, a Psychologist.  She was, but is no longer, employed by the Trust, and her involvement in the matter was as the individual who undertook an investigation on behalf of the Trust.  The HCPC also called Colleague A to give evidence.  The Registrant gave evidence in her own defence.  In addition to the oral evidence of these witnesses, the Panel was presented with a considerable body of documentary exhibits by both the HCPC and the Registrant.


9. The Panel began its deliberations on the facts by forming a general assessment of the witnesses who gave evidence before it.  The views of the Panel were as follows:


• SM. The Panel found that SM gave careful and measured evidence.  She was candid in accepting that the investigation was the first she had undertaken, and that the notes of her various interviews were not verbatim and therefore did not reflect all of the conversations she had.  She was also candid in accepting that the remark she made to the Registrant about the absence of the incident at Service User A’s home from the former’s complaint might have been inappropriate.  The Panel found her to be a robust and fair witness whose evidence was credible.  Accepting the limitation that she had no first-hand knowledge of the relevant events, the Panel concluded that it could safely rely on her evidence.
• Colleague A.  The Panel found Colleague A to be a witness who was prepared to make appropriate concessions.  For example, he accepted that there had been an inconsistency in his accounts of the date of the visit to Service User A’s house.  He was also clear in his evidence when he could not remember something.  He was positive about the Registrant’s ability as an Occupational Therapist.  The Panel also found that he did not seek to make excuses for his behaviour and fully accepted responsibility for the consequences of his actions.  He also fully accepted that the incident at Service User A’s home was wrong and inappropriate.  The Panel found him to be a credible witness upon whose evidence it could rely.
• The Registrant.  The Panel found that there were significant aspects of the Registrant’s actions that were implausible.  The Registrant’s first complaint to the Trust was sent less than six weeks after the incident at Service User A’s home, and the lengthy and particularised complaint to Colleague A’s regulator was sent less than 10 weeks after that incident.  Neither referred to the incident.  The Registrant sought to explain the omission by contending that she intended that it should be included in her complaint that sexual activity had taken place in, “… several locations including my home, work environments and some outdoor locations.”  The Panel rejects this explanation.  The Panel does not accept that the Service User’s home can sensibly be described as a “work environment”.  Furthermore, the form used for the referral to the regulator asked, “Where did the incident(s) take place?”.  Various locations are specified, but not the Service User’s home. This was also inconsistent with a formal interview with the Investigating Officer, SM, when the Registrant was asked why she had not included this incident in the initial complaint raised about Colleague A to his regulator; the Registrant said this was an ‘oversight’. The Panel also did not accept as credible the reason advanced by the Registrant for not having messages that she claimed were on her personal mobile telephone.  She said that she copied messages from her personal mobile telephone to her work tablet device and then deleted the messages from her personal telephone.  Again, the Panel could not accept the Registrant’s evidence that she feared that Colleague A would disclose incriminating photographs of herself in view of her actions on 8 August 2015 when Colleague A was photographed and an image (or images) were subsequently sent to his wife. In cross-examination before the Panel, there were occasions where the Registrant was assertive but when challenged more closely, she became tearful.   These reservations on the part of the Panel concerning the Registrant’s reliability as a witness had the consequence that the Panel hesitated in accepting her evidence.


10. The Panel approached the task of reaching a decision on the factual elements of the case by accepting the legal advice it received that it is for the HCPC to prove the factual elements of the case against the Registrant, the standard of that burden being the balance of probabilities.


11. It has already been stated that at the commencement of the hearing on 14 May 2018, the factual proposition advanced by particular 1 was not admitted by the Registrant.  In her evidence the Registrant accepted that on 8 July 2015 she did indeed have sexual intercourse with Colleague A at the home of Service User A.  It is the Registrant’s case, however, that the incident occurred in circumstances where she had no ability to prevent the incident occurring.  This case has the consequence that the Panel has had to make contextual findings, generally about her relationship with Colleague A, and specifically about the circumstances in which she found herself inside Service User A’s home having sex with Colleague A.


12. A great deal of evidence was given during the hearing about these contextual matters, and a large body of the paperwork placed before the Panel is concerned with the issue.  The Panel has had regard to all this evidence and the arguments based upon them in reaching its decision.  The Panel is satisfied, however, that it is sufficient to confine its contextual findings to the following:


• Having been work colleagues for some time before 2011, it was in that year that the Registrant and Colleague A became closer.
• It has already been stated that Colleague A’s work involved him offering a specific specialist therapy to service users, and it is the case that difficulties in the Registrant’s personal life meant that there were issues she wished to discuss.  The Panel finds that the two discussed these issues, but it rejects the Registrant’s case that there was a formal therapist/service user relationship between them, and it does not accept that the Registrant ever believed this to be the case.
• During 2012 a sexual relationship commenced between the two.  The Panel is satisfied that when it began the relationship was consensual.  It finds that at no time did Colleague A knowingly coerce, threaten or blackmail the Registrant into doing anything.
• It is possible that as time went on, the Registrant considered that the balance of power in the relationship had tilted in favour of Colleague A, but the Panel is satisfied that at no time did the Registrant lack the ability to desist from any behaviour she did not wish to indulge in.
• In relation to the visit to Service User A’s home on 8 July 2015, the Panel rejects the Registrant’s evidence that Colleague A arrived at the Service User’s home without her knowing that he was intending to go there, and it also rejects her case that he entered the property without her knowledge.  Consistent with the finding already expressed, the Panel finds that the Registrant could have declined to have sex with Colleague A had she wished to do so.
13. It follows from these findings that the Panel finds that the Registrant had sexual intercourse with Colleague A at the home of Service User A on 8 July 2015 in circumstances where she was not deprived of the ability to refuse to act as she did.  This is the factual finding that is relevant to take forward to the consideration whether the statutory ground of misconduct is made out.


Decision on Grounds


14. It has already been recorded that Service User A was not at her property when the incident occurred on 8 July 2015 as she was in hospital.  In the event the decision was taken by the Trust to not inform her of what had occurred between the Registrant and Colleague A during her absence from her home.  However, in the judgement of the Panel the behaviour was serious.  It had the clear potential to cause harm to Service User A by diminishing the trust she was entitled to have in the professionals charged with her care.  Furthermore, the behaviour would inevitably damage the reputation of her then employer and Occupational Therapists generally.


15. In the judgement of the Panel, the Registrant’s actions breached the following standards of the HCPC’s Standards of conduct, performance and ethics as they were formulated in July 2015, namely:


• Standard 1, “You must act in the best interests of service users.”
• Standard 3, “You must keep high standards of personal conduct.”
• Standard 13, “You must ….. make sure that your behaviour does not damage the public’s confidence in you or your profession.”


16. The Panel is satisfied that fellow professionals would regard the Registrant’s behaviour as deplorable.  The Panel’s finding are of a degree of seriousness that a finding of misconduct is justified.


Decision on Impairment


17. The Panel accepted the advice it received that it is required to consider both the personal component and the public component.


18. So far as the personal component is concerned, the Registrant said during her evidence that the incident should not have happened and was wrong at all levels.  That statement was immediately qualified by the assertion that she had no choice over whether to have sex. The Registrant’s insight is therefore limited by the fact that she does not accept that she had the ability to decline to behave in a way she accepts was wrong. The Panel finds that the circumstances of the incident were so unusual that a repetition of it is highly unlikely. However, the Registrant’s failure to accept personal responsibility for her actions on 8 July 2015, has the consequence that the Panel cannot be satisfied that the Registrant would take control of circumstances in the future if matters followed an unprofessional direction.  For these reasons the Panel finds that the Registrant’s fitness to practise is impaired upon consideration of the personal component.


19. The Panel is satisfied that a finding of current impairment of fitness to practise is also required in the wider public interest.  Fair-minded and fully informed members of the public would be appalled by the use of a service user’s home for a sexual encounter.  It is necessary to reach a finding of impairment of fitness to practise to declare and uphold proper professional standards and to deter other professionals who might otherwise think that they could behave without due regard to proper professional standards.


20. The findings of the Panel that there is misconduct that is currently impairing the Registrant’s fitness to practise has the consequence that the Panel must proceed to consider the issue of sanction.


Decision on Sanction


21. After the Panel announced the decision that the allegation is well founded, submissions on sanction were made by the parties.


22. On behalf of the HCPC, the Presenting Officer urged the Panel to consider and apply the HCPC’s Indicative Sanctions Policy.  She also identified aspects of the Panel’s decision in relation to the allegation that could be considered to be aggravating and mitigating factors.  She did not, however, submit that the Panel should apply any particular sanction.


23. Included in the submissions made on behalf of the Registrant by her representative was the argument that a sanction could seriously affect the Registrant’s ability to work and to provide for herself and her child.


24. The Panel accepted the legal advice it received that a sanction should not be imposed to punish a Registrant against whom findings have been made.  Rather, a sanction is only to be imposed to the extent that it is required to protect the public and to maintain a proper degree of confidence in the registered profession and the regulation of it.  To ensure that these principles are applied to the sanction decision being made by the Panel, it is necessary for the Panel first to decide if any sanction is required.  If it is decided that a sanction is required, then the available sanctions must be considered in an ascending order of seriousness until one is reached that sufficiently addresses the issues of public protection and maintenance of confidence in the profession and its regulator.  As the finding made by the Panel is one of misconduct, the sanction range extends to, and includes, the making of a striking off order.  Throughout its deliberations, the Panel had regard to the HCPC’s Indicative Sanctions Policy.


25. The Panel determined that there were both negative and positive factors that it was required to consider when reaching its decision on sanction.  The most prominent negative factors are that the finding was one of a serious breach of proper professional behaviour which would inevitably result in public and professional disapproval, and that the Registrant has failed to take full personal responsibility for that behaviour.  On the positive side, the finding is one of a single incident, and, as a result of the Trust taking the decision not to inform her, Service User A suffered no harm as a result of the incident.


26. The Panel was of the clear view that the finding was too serious to result in no further action being taken.  It followed that the Panel considered the available sanctions.


27. The Panel first considered the sanction of a caution order.  The Panel paid particularly close attention to the terms of paragraph 28 of the Indicative Sanctions Policy.  When the Panel considered whether the lapse was, “isolated, limited or relatively minor in nature”, it concluded that the Registrant’s breach could properly be described as isolated, and for that reason also limited.  In the judgment of the Panel the seriousness of it was somewhat greater than “relatively minor”.  When the Panel considered whether, “the Registrant has shown insight and taken remedial action”, the Panel concluded that the misconduct found in this case could not be remediated in any meaningful way, and that for reasons already explained by the Panel in relation to impairment of fitness to practise, the Registrant’s insight was not fully developed.  Accordingly, the Panel concluded that the circumstances of the present case did not fit squarely within those mentioned in paragraph 28 as being appropriate for the making of a caution order.  Accordingly, the Panel considered more restrictive sanctions.


28. The conclusion of the Panel was that a conditions of practice order would not be appropriate in this case.  The Registrant’s misconduct arose from the failure to observe an ordinary obligation of her registration.  Even if the Panel had considered that repetition was likely (which it did not), no specific condition could be appropriate to protect against that risk.  When the Panel considered whether a suspension order should be made the Panel concluded that it would be disproportionate, not least because it has not been found that there is a need to protect service users against the risk of repetition.  A striking off order would be even more disproportionate.


29. For these reasons the Panel revisited the appropriateness of making a caution order.  In particular, the Panel considered whether if a caution order was made, it would represent an unduly lenient sanction in view of the facts that the incident was more serious than one that could be described as “relatively minor”, and that the Registrant’s insight is not complete.  Having given this issue very careful consideration, the Panel concluded that a lengthy caution order would meet the circumstances of the case.  The presence of a caution against the Registrant’s HCPC registration for a lengthy period would be a significant factor, and in the judgement of the Panel would satisfy informed members of the public that it represented a serious view of the Registrant’s behaviour.  Furthermore, so far as the Registrant herself is concerned, the presence of a caution against her name would serve to remind her for the duration of the caution of the paramount importance of ensuring that she adheres to proper professional standards.  For these reasons, the Panel concluded that a caution order for three years is the appropriate sanction despite the respects in which the circumstances depart from those referred to in paragraph 28 of the Indicative Sanctions Policy.

Order

Order: The Registrar is directed to annotate the register entry of Ms Hazel Bryce with a caution which is to remain on the register for a period of three years from the date this order comes into effect

Notes

No notes available

Hearing History

History of Hearings for Mrs Hazel Bryce

Date Panel Hearing type Outcomes / Status
13/08/2018 Conduct and Competence Committee Final Hearing Caution