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Whilst registered as an Occupational Therapist and employed by Norfolk County Council:
1.In approximately June 2016, you removed up to 71 cases from the ‘holding list’, including one or more of the cases listed in Schedule 1;
2. Your actions described at particular 1 constitute misconduct and/or lack of competence;
3. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
1.Notice of the hearing was sent to the Registrant by a letter sent on 20 September 2018 by post and also by email. The Panel had sight of a signed Proof of Service certificate confirming the sending of the Notice of Hearing on 20 September 2018 to the Registrant’s address held by the HCPC. The Panel was satisfied that service had been made in accordance with the HCPC (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).
Proceeding in absence
2.Ms Manning-Rees on behalf of the HCPC submitted that the Panel should exercise its discretion to proceed in the Registrant’s absence.
3.The Panel accepted the advice of the Legal Assessor. The Panel referred to the HCPTS Practice Note of September 2018 on proceeding in absence and to the guidance that a hearing panel should consider as provided by the cases of R v Jones (Anthony)  1 AC 1HL and GMC v Adeogba  EWCA Civ 162. Applying that guidance, the Panel was careful to remember that its discretion to proceed in absence is not unfettered and must be exercised with the utmost caution and with the fairness of the hearing at the forefront of its mind.
4.The Notice of Hearing dated 20 September 2018 informed the Registrant of the date and details of the Conduct and Competence Committee hearing, and of her right to attend and be represented. The Registrant was also advised of the Panel’s power to proceed with the hearing in her absence if she did not attend and of how she could apply for an adjournment of the hearing. She was informed of the sanction powers available to the Panel, should it find her fitness to practise to be currently impaired.
5.The Registrant had not responded to the Notice of Hearing of 20 September 2018, and had not communicated with the HCPC nor Kingsley Napley, Solicitors acting for the HCPC. No request for an adjournment had been received, nor was there any indication that the Registrant wished to attend the hearing but for some reason, such as a health issue, was unable to do so. There was no suggestion that she had sought to instruct a representative.
6.Taking all the above circumstances into account, the Panel concluded that the Registrant had not engaged with the HCPC process in relation to this hearing. It was unlikely in all the circumstances that an adjournment would secure her attendance on a future date. The Panel took the view that the Registrant had voluntarily waived her right to attend and that adjourning this hearing would serve no purpose.
7.The Panel was mindful that it must also consider fairness to the HCPC, whose case was ready to proceed today. The HCPC’s witnesses were present and ready to give evidence. The Panel took account of the public interest in the expeditious resolution of regulatory allegations and the impact of cost and delay caused by an adjournment upon other cases. Following the guidance in the case of Adeogba, given that there was no good reason to adjourn the hearing, the Panel decided it was in the public interest to proceed in the Registrant’s absence.
8.The Panel acknowledged that in the Registrant’s absence it should ensure that the hearing was as fair as circumstances permit. It would not regard the Registrant’s absence as an admission to the allegations. The Panel was also mindful that it should ask questions and consider points which may be in the Registrant’s interests and were reasonably apparent from the evidence.
Application to amend the allegation
9.Ms Manning-Rees applied to amend the allegation. In the HCPC Notice of Allegation sent to the Registrant on 13 February 2018 paragraph 1 read "In approximately June 2016, you removed up to 71 cases from the ‘holding list’, including one or more of the cases listed in Schedule 1." However Schedule 1 was omitted from the notice. Ms Manning-Rees submitted that the omission was a simple error that was corrected by way of a further letter to the Registrant on 16 October 2018, to which no response was received. Accordingly, Ms Manning-Rees' application was to amend the allegation by adding Schedule 1.
10.The Panel heard and accepted the advice of the Legal Assessor. It considered that the amendment provided clarification to the allegation, and corrected a clear typographical error. The Registrant had not objected to the proposed amendment following the HCPC letter of 16 October 2018 and the Panel was satisfied that the amendment could be made without prejudice to the Registrant. Accordingly, the Panel acceded to Ms Manning-Rees's application.
11.The Panel received the HCPC hearing bundle, numbered pages 1- 578 and a small bundle of correspondence concerning service. The Panel also received from Ms Manning-Rees an evidential matrix. No written submissions or documents had been received from the Registrant for the purpose of the hearing.
12.The Registrant was employed as a Team Manager for Adult Social Services at Norfolk County Council (‘the Council’) from 28 February 2011. One of the Registrant's responsibilities was to review and manage a holding list of cases awaiting allocation and requiring further work to be completed. The holding list was a list of individuals that had been referred to the team in order for an assessment to be undertaken. The purpose of the holding list was to ensure that all referrals were stored in one central place where they could be monitored and reviewed.
13.There was established guidance for reviewing the holding list that was published by the Council on 28 December 2016. Paragraph 5 of the guidance provided:
"5. Cases to go on the holding list:
The Duty manager should assign any remaining cases to the holding list. Before doing so, the Duty manager must ensure the following information is recorded on the Arrange Assessment I Review activity:
•where the person lives
• the nature of the referral
• whether the case is for a Social Worker, Occupational Therapist or Assistant Practitioner
• information about carers (if applicable)
• Continuing Healthcare (if applicable)
• whether it is a hospital case not ready for discharge (if applicable)
The Duty manager must assess the priority of each case and add the priority category to the activity. They should then reassign the activity to the relevant holding list."
14.The concerns came to light when a Practice Consultant Social Worker came across “Case 8” on 14 June 2016. The matter was escalated to the Council's Service Manager, subsequently to the Head of Safeguarding and then to the Head of Operations.
15.Upon further investigation, it was found that between 7 and 10 June 2016 the Registrant had removed 71 cases from the holding list without undertaking further work that was required to ensure the safety and wellbeing of the service users. Of the 71 cases it was identified that none should have been closed or abandoned without further enquiries being made. It followed there would have been no further contact with the individual service users unless they themselves had made further contact with the Council. The holding list was a significant number of the total referrals at the time.
16.The HCPC's case was that the potential consequences of the Registrant's conduct were significant; service users could have been left in a vulnerable position, left at risk or led to a breakdown in the family situation, or the service user not receiving the care that they need. There was an ancillary risk of reputational damage to the Council.
17.The HCPC adduced oral evidence from witnesses SK, SS and KW. Each witness confirmed and adopted their witness statements as their evidence in chief, and were asked a number of supplementary questions. The HCPC further relied upon the witness statements of JW and CC, adduced as documentary hearsay evidence. The Panel admitted those witness statements in the exercise of its wide discretion to permit evidence to be adduced in a manner not constrained by the rules of evidence in criminal or civil courts. It reminded itself that it would be a matter for the Panel to attach such weight to that evidence as it considered appropriate.
Decision on Facts
18.The Panel carefully considered the oral evidence, the witness statements, all the documents before it and the submissions of Ms Manning-Rees.
19.The Panel found that witness SK gave reliable evidence, providing a fair and measured account of her professional relationship with the Registrant, for whom she was a line manager. SK told the Panel that the Registrant accepted having removed the cases from the holding list when she had challenged her, and that her explanation was that she had done this as a way of managing the high number of referrals. SK said that there was nothing unusually onerous about the Registrant's workload, and had told the Registrant that all of the cases should be returned by her to the holding list, but this was not done.
20.SK gave clear evidence of the purpose of the holding list and the effect of referrals being abandoned upon the Council and the affected service users. The Panel accepted her evidence that “It is not appropriate under any circumstances to simply abandon a case from the holding list. … it would be necessary to contact the individual service user or their family to determine if the circumstances had changed. If an assessment was no longer required, there is a process to follow for closing the case. Cases should not be removed from the holding list in any other circumstances.” The Panel accepted SK's evidence that it was the Registrant's professional responsibility, as team manager, to effectively manage the holding list, and that significant potential risks were created by the wrongful abandonment of referrals - both in terms of reputational damage to the Council and a failure to address safeguarding concerns for service users. SK also affirmed that the guidance in place at the time of the incidents was essentially the same as the revised version published in December 2016.
21.Witness SS was a Service Manager for the Council who prepared an Activities Report List which identified the 71 referrals most of which had been marked up as "abandoned" by the Registrant. The Panel found SS to be a credible witness who limited his evidence to his remit and who had undertaken a comprehensive, accurate and reliable analysis of the records. The Panel considered that he had no reason to mislead in relation to his findings in relation to the records.
22.Witness KW gave clear evidence of her manual check of each of the affected 71 service users. Her evidence provided corroboration for that of the previous two witnesses and the Panel found her to provide reliable evidence upon which it could rely. She told the Panel that, in her experience, it was very rare for referrals to be abandoned as there was nearly always outstanding work to be undertaken.
23.The Panel considered the witness statements of witnesses JW and CC. It was mindful that the evidence was documentary hearsay and considered that it was of overall limited assistance, but that it did provide some corroboration for the oral evidence adduced.
24.The Panel bore in mind that the HCPC had brought the allegation and the burden remained upon the HCPC to prove its case. The Registrant did not have to prove anything. The standard of proof was on the balance of probabilities. The Panel did not treat the Registrant's absence from the hearing and, accordingly, her failure to give evidence, as any support for the HCPC's case. The fact of her absence did, of course, mean that there was no oral evidence from her which was capable of contradicting, undermining, or explaining the evidence presented by the HCPC. However, the burden remained upon the HCPC to prove its case to the required standard.
25.The Panel considered whether there was any possible innocent or inadvertent explanation for the Registrant’s actions. It noted that no alternative explanation, innocent or otherwise, had been proffered by the Registrant. The Panel therefore concluded that there had been no innocent explanation for what the Registrant had done and it rejected the account given by her to SK that, in effect, it was an appropriate means to manage the caseload.
26.The Panel carefully considered the evidence adduced by the HCPC, noting that it had never been the subject of challenge by the Registrant. Relying upon its assessment of the witnesses, and accepting their evidence as credible and reliable, the Panel found the evidence overall presented a clear and compelling case that supported the factual basis of the allegation. Accordingly, the Panel found allegation 1 proved.
Decision on Grounds
27.Ms Manning-Rees made submissions regarding the issue of grounds. She addressed the Panel on both lack of competence and misconduct. She referred to the guidance on misconduct derived from Roylance v GMC (No 2)  1 AC 311 and invited the Panel to conclude that it may be driven to a finding that the Registrant's conduct represented misconduct rather than a lack of competence.
28.Ms Manning-Rees referred to the relevant the HCPC Standards of proficiency for Occupational Therapists, paragraphs 2, 4, 8 and 10. She also referred to 2016 the HCPC Standards of conduct, performance and ethics, paragraphs 1, 8 and 10.
29.No submissions regarding misconduct or lack of competence had been received from the Registrant.
30.The Panel heard and accepted the advice of the Legal Assessor. The Panel also considered the HCPTS Practice Note and the guidance in the case law.
31.The Panel concluded that the facts found proved demonstrated conduct that fell significantly below the standards expected of a registered Occupational Therapist, and that her actions breached the HCPC Standards of conduct, performance and ethics (2016). It found the Registrant was in breach of the following paragraphs :-
1. Promote and protect the interests of service users and carers. Treat service users and carers with respect.
1.1 You must treat service users and carers as individuals, respecting their privacy and dignity.
1.2 You must work in partnership with service users and carers, involving them, where appropriate, in decisions about the care, treatment or other services to be provided.
8. Be open when things go wrong
Openness with service users and carers
8.1 You must be open and honest when something has gone wrong with the care, treatment or other services that you provide by:
- informing service users or, where appropriate, their carers, that something has gone wrong;
- taking action to put matters right if possible; and
- making sure that service users or, where appropriate, their carers, receive a full and prompt explanation of what has happened and the likely effects.
10. Keep records of your work
Keep accurate records
10.1 You must keep full and accurate records for everyone you care for, treat, or provide other services to...
32.The Panel also considered the HCPC Standards of proficiency for Occupational Therapists (2013). It found the Registrant was in breach of the following paragraphs:
Registrant occupational therapists must:
2be able to practise within the legal and ethical boundaries of their profession
2.1understand the need to act in the best interests of service users at all times
2.2understand what is required of them by the Health and Care Professions Council
2.3understand the need to respect and uphold, the rights, dignity, values, and autonomy of service users including their role in the diagnostic and therapeutic process and in maintaining health and wellbeing
2.4recognise that relationships with service users should be based on mutual respect and trust, and be able to maintain high standards of care even in situations of personal incompatibility
2.8be able to exercise a professional duty of care
4be able to practise as an autonomous professional, exercising their own professional judgement
4.1be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem
4.2be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately
4.5be able to make and receive appropriate referrals
10be able to maintain records appropriately
10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines
10.2recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines
33.The Panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards would be sufficiently serious that it could properly be described as misconduct. However, the Panel was in no doubt that the facts it had found proved in this case amounted to misconduct. It found that the Registrant's actions placed a large number of service users at a serious risk of harm, through their safeguarding needs not being met. The Panel accepted the HCPC's case that there was a clear potential for particularly vulnerable members of society not receiving the care that they needed. There was an ancillary risk of reputational damage to the Council, but in the Panel's view this was of limited consequence when put into the context of the risk to service users.
34.The Panel, found that the Registrant’s conduct demonstrated behaviour that lacked professional integrity and that fellow Registrants would consider to be nothing short of deplorable. The Panel was in no doubt that the Registrant's behaviour had the clear potential to undermine public confidence in the profession and it found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC.
35.The Panel determined that this case does not engage the lack of competence ground. The behaviour took place over one week in early June 2016 and the Panel could not conclude that it had been presented with a fair sample of the Registrant’s work against which to assess her failings.
Decision on Impairment
36.Ms Manning-Rees made submissions on impairment and referred the Panel to the HCPTS Practice Note on Finding Fitness to Practise Impaired and to the guidance in the Fifth Shipman Report and CHRE v NMC and Grant  EWHC 927 (Admin). The Panel was invited to assess the Registrant’s level of insight and what, if any, remediation had been undertaken. Ms Manning-Rees reminded the Panel of the need to assess current impairment in relation to both the public and personal components and, in conclusion, she submitted that both the personal and public components were engaged in this case.
37.No submissions regarding impairment had been received from the Registrant.
38.The Panel accepted the advice of the Legal Assessor. He advised the Panel to consider the HCPTS Practice Note on Impairment and the relevant case law, including Grant. He reminded the Panel that it must consider the issues of insight, remediation and risk of repetition when assessing impairment and that the Panel should exercise its own professional judgment on these issues.
39.In reaching its decision, the Panel bore in mind its duty to protect the public, to maintain public confidence in the profession and the regulatory process, and to declare and uphold proper standards of behaviour and conduct.
40.The Panel bore in mind the guidance in the Grant case. The Panel first carefully considered the personal component of impairment, and considered the Registrant's level of insight, whether her misconduct was capable of remediation, whether it had been remediated and the risk of repetition.
41.The Panel was concerned that the Registrant's misconduct may demonstrate an attitudinal failing, and thereby be difficult to remedy. This was supported by the Registrant not having taken steps to return all of the removed cases to the holding list after having been instructed to do so by SK. In theory, the Panel considered the misconduct was capable of remediation through meaningful reflection into the failings and re-training on the fundamental importance of adherence to the principles set out in the Standards set out above. In the event, absence of any engagement by the Registrant with her regulator, or any evidence of reflection or re-training, the Panel found no evidence of remediation of the Registrant's misconduct.
42.As to insight, the Panel was further concerned that the Registrant had failed to appreciate the nature and seriousness of her actions when challenged by SK. There was no evidence before the Panel that the Registrant understands the culpability of the behaviour that led to the finding of misconduct, or that she has at any stage reflected upon her behaviour. The Panel found that the Registrant has demonstrated no insight and does not appear to have recognised that what she did was wrong and the potential consequences of her actions.
43.In the absence of any remediation or the demonstration of insight, the Panel could not exclude the risk of repetition of such misconduct by the Registrant.
44.In all these circumstances, the Panel has found that the Registrant has in the past acted, and is liable in the future to act, so as to put service users at unwarranted risk of harm; that she has in the past brought, and that she is liable in the future to bring the profession into disrepute; and that she has in the past breached, and is liable in the future to breach fundamental tenets of the profession, namely to:
•promote and protect the interests of service users and carers
•be open when things go wrong
45.Turning to the public interest component of impairment, the Panel was satisfied that the Registrant's misconduct substantially undermines the trust and confidence the public has in the profession. The Panel was in no doubt that the need to declare and uphold proper professional standards and to maintain public confidence in the profession is such that a finding of impairment must be made in the circumstances of this case.
46.Accordingly, the Panel determined that the Registrant's current fitness to practise is impaired by reason of her misconduct, both on the grounds of public protection and in order to meet the wider public interest.
Decision on Sanction
47.Ms Manning-Rees made submissions to the Panel on the issue of sanction. She maintained a neutral position on the type of sanction, but referred to the HCPC Indicative Sanctions Policy and reminded the Panel it ought to start from the least restrictive sanction, bearing in mind the need to act proportionally. She submitted that the aggravating factors had been identified by the Panel in its finding of misconduct above, and that the only mitigating factor was that at the time of the misconduct the Registrant had a substantial workload.
48. The Panel accepted the advice of the Legal Assessor who also referred it to the HCPC Indicative Sanctions Policy. He reminded the Panel it should consider any sanction in ascending order, and to apply the least restrictive sanction necessary to protect the public and to satisfy the wider public interest. It should also consider any aggravating and mitigating factors and the need to bear in mind the requirement to act proportionately. He reminded the Panel that the primary purpose of sanction was protection of the public and that there was a need to balance that with the interests of the Registrant.
49.The starting point for the Panel was that the Registrant’s misconduct was extremely serious; her deliberate actions placed a large number of service users at serious risk of harm, through their safeguarding needs not being met. There was a clear potential for particularly vulnerable members of society not receiving the care that they needed and this had a potential to adversely impact upon family members and carers. The Panel had no information to indicate that the past concerns about the Registrant’s practice had been addressed, and it concluded that she continues to pose a current risk of harm to the public and to the wider public interest.
50.The Panel considered the mitigating and aggravating factors. In relation to mitigation, no submissions or evidence had been advanced by or on behalf of the Registrant.
51.The Panel found no mitigating factors were present, and did not consider the Registrant's workload to amount to any mitigation in light of the evidence of SK who said that there was nothing unusually onerous about her workload.
52.The Panel identified the following aggravating factors in this case:
• A large number of particularly vulnerable service users were placed at risk of harm as a result of the Registrant’s actions, with a further impact upon their families and carers
• the Registrant had failed to engage in the HCPC proceedings and had failed to demonstrate any insight, remorse or remediation.
53.The Panel considered what sanction, if any, should be applied, and considered its powers in ascending order of seriousness.
54.The Panel was in no doubt that neither mediation nor taking no further action were appropriate in this case, given the Registrant’s lack of engagement with the HCPC and the nature and gravity of the matters found proved. It also concluded that the public interest, in terms of confidence in the profession and the HCPC as regulator, would not be addressed by such an outcome.
55.The Panel next considered whether to make a Caution Order. The Panel was in no doubt that a caution order was an inappropriate and insufficient sanction in this case. A caution order would not protect the public from the identified risk of repetition in this case, nor would it reflect the need to maintain public confidence in the profession and the HCPC as its regulator. The Registrant’s misconduct involved very serious failings and the Panel concluded that it was not at the lower end of the spectrum of impaired fitness to practise.
56.The Panel next considered a Conditions of Practice Order. It bore in mind the Registrant's lack of engagement, absence of insight or remediation and the fact that the Panel had no information of her current circumstances. Accordingly, the Panel concluded that even if appropriate conditions could be formulated to address the misconduct and the ongoing risk represented by the Registrant it could not be satisfied that those conditions would be workable, or that she would comply with them. Moreover, the Panel considered that a Conditions of Practice Order would not be a proportionate response to the nature and seriousness of the Registrant's misconduct and the absence of insight on her part.
57.The Panel went on to consider the sanction of suspension. The Panel has found that the Registrant has demonstrated no insight and there is no evidence of remediation. The Panel was mindful of paragraph 41 of the Indicative Sanctions Policy; “If the evidence suggests that the Registrant will be unable to resolve or remedy his failings then striking off may be the more appropriate option”. The Panel bore in mind that when SK directed the Registrant to return all of the removed cases to the holding list she chose not to do so.
58.The Panel, having found no evidence of insight, or remediation on the part of the Registrant, determined that there was little, if anything, to suggest that the Registrant was able to resolve or remedy her failings. The Panel was also mindful that a sanction is primarily about public safety, that the public interest is important and that suspension is not an appropriate sanction merely to allow a Registrant more time to develop insight.
59.Given its findings as to the nature and gravity of the misconduct found, coupled with the lack of insight and remediation, the Panel determined that a Suspension Order would not be appropriate or proportionate. Suspension would fail to adequately address the public interest and the need to send an appropriate deterrent message to the profession.
60.The Panel therefore determined that no lesser sanction than a striking off order would reflect the nature and gravity of the Registrant's misconduct, particularly in light of her lack of insight, failure to remediate and refusal to engage with her regulator. A lesser sanction would lack the necessary deterrent effect and would not provide the necessary protection for the public.
61.The Panel was mindful of the significant impact that such an order may have on the Registrant in terms of financial, personal and professional hardship. In any event, the Panel determined that the protection of the public and the wider public interest outweigh those of the Registrant in this regard.
62.The Panel accordingly determined to impose a striking off order.
The Panel decided to hand down a Strike Off Order.
An Interim Suspension Order was also imposed to cover the appeal period.
No notes available
History of Hearings for Linda Hawkins
|Date||Panel||Hearing type||Outcomes / Status|
|18/12/2018||Conduct and Competence Committee||Final Hearing||Struck off|