Miss Zoe L Flello

Profession: Physiotherapist

Registration Number: PH54840

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 03/12/2018 End: 17:00 10/12/2018

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

During the course of your employment as a Physiotherapist at Milton Keynes University Hospital:

1) In the case of Child A, you:
a. did not record and/or place on file in a timely manner, contemporaneous treatment notes for appointments on 30.03.16 and/or 20.04.16 and/or 25.05.16;
b. did not record and/or place on file treatment notes for appointments on 07.05.15 and/or 07.10.15 and/or 15.10.15;
c. did not assess and/or record objective measures adequately and/or at all;
d. did not consistently record an analysis of whether the treatment was effective;
e. did not provide and/or record clear goals for the patient.

2) In the case of Child B, you:
a. did not record and/or place on file in a timely manner, contemporaneous treatment notes for appointments on 30.03.16 and/or 20.04.16 and/or 25.05.16;
b. did not record and/or place on file treatment notes for appointments on 07.05.15 and/or 07.10.15 and/or 27.10.16;
c. did not assess and/or record objective measures adequately and/or at all;
d. did not consistently record an analysis of whether the treatment was effective;
e. did not provide and/or record clear goals for the patient.

3) In the case of Child C, you:
a. did not record sufficient detail about the patient's treatment on 22.10.2015;
b. did not consistently record an analysis of whether treatment was effective;
c. did not consistently record an adequate plan of what the patient’s goals were and/or when outcome measures would be retested;
d. did not record and/or place on file in a timely manner, contemporaneous notes for the contact with the patient’s father on 03.02.2016.

4) In the case of Child D, you:
a. did not undertake and/or record treatment notes for patient appointments on 22.05.14 and/or 04.12.14;
b. did not see and/or record that you had seen the patient between 19.12.14 and 01.07.15;
c. noted a deterioration in the patient’s condition on 02.07.15 but did not:
i. contact and/or record your contact with the patient’s parents to update them; and/or
ii. plan to offer treatment until approximately two months later; and/or
iii. provide and/or record that you had provided the patient with a home exercise plan.
d. did not see and/or record that you had seen the patient between 03.07.15 and 21.10.15;
e. did not assess and/or record objective measures adequately and/or at all;
f. did not consistently record an analysis in your notes of whether treatment was effective.

5. In the case of Child E, you:
a. did not set and/or record goals and/or outcome measures to reassess the patient;
b. did not provide and/or record the provision of treatment to the patient;
c. did not record justification for continuing with regular appointments.

6. In the case of Child F, you:
a. did not consistently record sufficient objective assessment in patient notes;
b. did not consistently record sufficient detail with regards to goals and/or outcomes;
c. did not record and/or place on file in a timely manner, a contemporaneous treatment note for an appointment on 21.05.16.

7. In the case of Child G, you:
a. did not record an assessment of whether the SDR surgery was successful;
b. did not see the patient between 17.12.2015 and September 2016;
c. did not consistently record an adequate plan in the patient’s notes and merely stated “continue”;
d. did not consistently set and/or record goals and/or outcome measures to reassess the patient;
e. did not consistently record an analysis of the patient's problems and/or whether physiotherapy treatment was effective;
f. did not set and/or record any home exercise programme for the patient, despite its importance following surgery.

8. In the case of Child H, a patient suffering from a worsening gait pattern and falls, you:
a. did not conduct and/or record the following assessments of neuro testing for neuromuscular weakness:
iv. an assessment of the patient’s strength; and/or
v. Eccentric control; and/or
vi. any testing for fatigue; and/or
vii. an assessment of how the patient gets off the floor;
b. did not include a copy of and/or record details of the patient's exercise programme in their notes;
c. did not provide and/or record clear plans and goals.

9. In the case of Child I, you:
a. did not document in sufficient detail the treatment provided to the patient;
b. did not consistently record an analysis of the patient's condition and/or whether treatment was effective;
c. did not set and/or record goals and/or outcome measures to reassess the patient.

10. In the case of Child J, you:
a. in respect of the use of equipment at appointment on 17.09.15 did not:
i. obtain a signed copy of the safety advice sheet and/or place this on file; and/or
ii. provide and/or record that safety advice was given on this date.
b. did not record in sufficient detail the patient's treatment;
c. did not record and/or place on file in a timely manner, treatment notes for the patient's appointment on 10.12.15.

11. In the case of Child K, you:
a. did not record the treatment given;
b. did not set and/or record goals and/or outcome measures to reassess the patient;
c. did not consistently record an adequate analysis of the patient's condition and/or whether treatment was effective;
d. on 26.02.16 and 22.06.16 recorded that a plan was in place to visit the patient's school to run through the exercise programme but did not conduct and/or record a subsequent school visit.

12. In the case of Child L, you did not carry out and/or record strength or stability observations.

13. In the case of Child M, you:
a. did not action the plan to order different accessories arrange and/or record arranging for a company representative to complete an assessment of the appropriate equipment to meet Child M’s needs, despite identifying the need for alternative equipment on 28 October 2015;
b. did not attend and/or record attending the patient between 28.10.15 and 23.08.16;
c. Attended an appointment on 08.09.16, during which you:
i. set up the standing frame without trialling Child M in the standing frame; and/or
ii. agreed for the mother to adjust the standing frame herself.

14. In the case of Child N, you:
a. did not record the treatment the patient received;
b. did not consistently record an adequate analysis of the patient's condition;
c. did not record clear reasoning for not arranging either a follow up appointment with the patient following the appointment on 16.12.15 or arranging discharge.

15. In the case of Child O, you:
a. did not clearly record an analysis of the patient's condition;
b. did not set and/or record goals and/or outcome measures to be achieved;
c. did not arrange and/or record arranging a school visit as you indicated you would do in the notes of appointment on 03.06.15.
d. did not take steps and/or record those steps taken to order equipment as you indicated you would do in the note of your appointment on 3.06.15.

16. In the case of Child P, you:
a. did not provide Child P with weekly physiotherapy for a period of six weeks following Botox therapy in April 2015;
b. despite noting that the child’s walker was too small, did not order and/or record that you had ordered the patient's walker;
c. identified that the patient required a standing frame on 21.05.15 but did not:
i. speak and/or record a discussion with the child’s mother regarding this issue until 24.02.2016;
ii. actively progress the plan to provide a standing frame;
d. following concerns identified on 16.06.16, regarding Child P not attending school, did not undertake adequate steps to ensure Child P was safe.

17. In the case of Child Q, you:
a. did not see the patient between 30.09.15 and 06.01.16, despite the child requiring a full assessment as soon as possible;
b. did not record a clear analysis of the patient's problems;
c. did not carry out a detailed physical assessment of the patient's condition on 06.01.16;
d. despite noting Child Q needed an alternative walker on 6.01.16, did not take/and or record steps to arrange for a suitable walker to be provided in a timely manner;
e. on 15.09.16 placed an order to trial equipment but did not detail which accessories should accompany the walker.

18. In the case of Child R, you:
a. did not provide adequate safety advice and/or record providing adequate safety advice to the patient's parents;
b. did not provide a treatment block following appointment on 19.03.15;
c. did not carry out and/or document evidence of any home exercise programme or advice on activities for the patient to do at home;
d. despite agreeing on 10.06.15 to make a wheelchair referral, did not do so until 21.01.16;
e. did not record that the patient's walker tipped outside at school on the Trust Datix incident reporting system;
f. did not visit the patient at school between 13.10.15 and 05.05.16;
g. did not record and/or place on file in a timely manner, a contemporaneous record of your conversation with the child’s mother on 16.06.17.

19. In the case of Child S, you:
a. did not consistently record sufficient observations of the patient’s condition;
b. did not provide and/or record an adequate treatment plan;
c. did not provide follow up treatment between 24.06.13 and 07.01.15.

20. The matters set out in paragraphs 1 – 19 constitute misconduct and/or lack of competence.

21. By reason of your misconduct and/or lack of competence your fitness to practice is impaired.

Finding

Preliminary matters

Proof of Service

1. The Panel took account of the notice of the hearing sent to the Registrant in accordance with the provisions set out in the HCPTS practice note entitled "Service of Documents", by both email and first class post.

 

2. The Panel was satisfied that the Registrant was notified of the date and time of the hearing via a letter dated 11 September 2018, which was sent by first class post to her registered address. Accordingly the HCPC had discharged its duty to serve documentation on the Registrant, in accordance with the Health and Social Work Professions Order 2001 (the Order).

 

Proceeding in absence

3. Included in the Notice of Hearing was confirmation that the hearing could proceed in the absence of the Registrant. The Presenting Officer submitted that it was in the public interest for the hearing to proceed in the absence of the Registrant. She provided to the Panel copies of correspondence between the HCPC and the Registrant dated 29 August 2018 in which the Registrant stated that she would not be attending the hearing or submitting any further representations. There was no request for an adjournment and no indication that the Registrant would attend a hearing at a future date if the hearing was postponed. The Registrant also had not indicated that she wished to be represented at the hearing.

4. The Panel noted the provisions of the HCPTS practice note in respect of proceeding in absence and received advice from the Legal Assessor, which it applied. There had been no request for an adjournment received, nor any interest expressed by the Registrant in providing evidence via video or telephone link. However, the Registrant had expressed her intention not to participate in the proceedings. Further, there were two witnesses for the HCPC and the HCPC was in a position to proceed with the hearing.

5. The Panel was satisfied that it was appropriate for it to exercise its discretion to hear the matter in the absence of the Registrant. Proceeding in absence may disadvantage the Registrant, given the serious nature of the matters to be determined however it was satisfied that the Registrant had voluntarily absented herself from the proceedings. She was aware of the hearing and had chosen to not be represented. Witnesses were in attendance and there was a public interest in proceeding. These factors outweighed any potential prejudice to the Registrant.

Amendments to the Allegations

 

6. The Presenting Officer applied to amend the wording of the particulars in respect of Allegations 2(b) and 18(g) to amend the dates to reflect the evidence included within the bundle. The Presenting Officer submitted that the changes to the dates were necessary to correct typographical errors and did not materially change the nature of the particularised allegations. There was also a need to amend the numbering of allegation 8(a)(iv) – (vii). This numbering appeared to have been included as a consequence of a formatting error, and it was proposed that the numbering of this allegation be re-numbered as 8(a)(i) – (iv) to avoid confusion.

7. The Panel was conscious that the Registrant had voluntarily absented herself from the proceedings and chosen not to be represented. As a consequence, she was unaware of the precise detail of the proposed amendments and unable to make representations on the same. The HCPTS has provided guidance to Panels in a document entitled "Unrepresented Registrants" and the Panel was aware of the need to ensure that an unrepresented registrant has every reasonable opportunity for their case to be carefully and fairly considered.

8. The Panel also had regard to guidance issued by the HCPTS entitled "Case to Answer Determinations" and had the benefit of legal advice from the Legal Assessor, which it accepted. The guidance document sets out that the Panel may need to amend or omit elements of an allegation. As allegations are drafted at an early stage in a dynamic investigative process, it is important that Panels give critical scrutiny to the drafting of allegations put before them, to ensure that they are fit for purpose and constitute a fair and proper representation of the HCPC’s case. Allegations should be drafted in clear and unambiguous language which enables the Registrant and anyone else reading them to understand what is being alleged.

9. The Panel was satisfied that the amendments proposed by the Presenting Officer at the commencement of the hearing ensured that the particulars of the allegations promoted the above requirements and did not prejudice the Registrant. Accordingly the application to amend the allegations was approved.

 

Background

10. The Registrant was employed as a Physiotherapist at Milton Keynes University Hospital NHS Foundation Trust ("the Trust") from 1998 to September 2016. She was the Clinical Team Lead for the Core Over 5s Neurology Service, working with children aged between five and 19 years old with long term conditions, primarily those arising from neurological disorders.

11. Following an administrative error in May 2016 by which a member of the Trust’s administrative staff accidentally deleted a set of patient records,

 

discrepancies were identified between the electronic appointment records and the paper records written and filed by the Registrant. The discrepancies initially noted were that there were occasions where the electronic diary system ("Tynedale") indicated that the patient attended an appointment, but there were no corresponding paper records held on site. The Registrant’s line manager, Witness 1, initially conducted a sample review of the Registrant’s case notes. A wider audit, jointly conducted by Witness 1 and a former service manager, Witness 2, identified a number of concerns with the Registrant’s record keeping and general practice.

12. Following the completion of the wider audit, the Registrant was invited to attend a meeting with Witness 1 on 23rd August 2016. Shortly after the meeting had been scheduled, the Registrant resigned from her post. She left the Trust in September 2016 and these matters had been referred to the HCPC by Witness 1 in a referral form dated 9 September 2016.

Assessment of witnesses

Witness 1

 

13. This witness was employed as a Team Leader and Highly Specialist Paediatric Physiotherapist from May 2015 until the Registrant left her employment. She had responsibility for managing a team of physiotherapists and the Paediatric Physiotherapy service. She provided written and oral evidence (by affirmation) to the Panel and answered questions from the Presenting Officer and the Panel. This witness gave her evidence in a straightforward way, doing her best to recall the details but indicating clearly if she was uncertain. The answers she gave were within her knowledge. She recognised positive aspects of the Registrant’s practise. The Panel considered her to be a credible, reliable and professional witness.

 

Witness 2

 

14. This witness was a Service Manager for the Trust and the operation lead for out-patient physiotherapy, having strategic responsibility for physiotherapy and occupational therapy. She was the line manager of Witness 1 and provided written and oral evidence to the Panel under oath and answered questions.

 

15. The Panel found her to be fair and willing to assist the Panel however her memory of events had clearly been impacted by the passage of time and therefore on some occasions she was unable to recall information. She was not evasive and if she didn’t know something she was not prepared to speculate. The Panel found it understandable that she struggled with her recollection of details given that the events in question took place more than two years previously and she had retired from her job more than a year ago. The witness knew the Registrant and her work history with the Trust, and was aware of the relationship between the Registrant and Witness 1.

Decision on Facts

16. The Panel considered each particular in turn, taking account of the documentary and oral evidence available to them, including the patient notes relating to the allegations, the submissions of the Presenting Officer and the legal advice provided by the Legal Assessor. The Panel must decide, on the balance of probability, whether the facts alleged are found proved.

 

Particular1(a) – proved

 

17. In her preliminary audit Witness 1 checked the records of Child A and found that the treatment notes for appointments on 30 March 2016, 20 April 2016 and 25 May 2016 were missing. These missing records were subsequently found in the files when she undertook a second audit. The only time frame identified to the Panel was that the deletion sparking the concern happened in May 2016, and Witness 1 invited the Registrant to a meeting to discuss concerns about her record keeping on 5 August 2016 (D494). The Panel were therefore unable to determine the point at which the Registrant became aware of the concerns, though it noted her written representation that she became aware of the concern "just prior to this referral to the HCPC" (E3). The referral form was dated 9 September 2016 (D7).

18. Notwithstanding the fact that the Panel could not identify precisely when the Registrant became aware of the scrutiny of her record keeping, or the date on which the preliminary audit was conducted, the Panel were satisfied that the handwritten preliminary audit template was more likely than not to be the most contemporaneous record of the content of the paper file at that time. The Panel found Witness 1 to be thorough and conscientious in the performance of her role and it was not persuaded that Witness 1 would have missed the entries for three separate dates when auditing the paper record.

19. Witness 1 explained the entry of the attendance records on the Tynedale system to the Panel. There was no record as to who made the entries onto the system, and Witness 1 accepted that mistakes were made in relation to entries. However, she said that the attendance of a patient was recorded by the physiotherapist at the time of the appointment. The Panel approached the Tynedale records for Child A with caution but nevertheless the Panel was satisfied that Child A had contact (or was meant to have contact) with the service on 30 March 2016, 20 April 2016 and 25 May 2016.

20. The Panel considered whether notes for the three appointments could have been entered on the record of Child A’s twin, Child B, given that they shared the appointments. However, it noted that Witness 1’s preliminary audit on the records of Child B also did not include any entries for the three dates in question, yet by the time of the wider audit, there were entries for those dates. Witness 1 gave evidence that patient notes were at that time to be written up within twelve hours and time was allocated in an appointment to do this. The expectation now is that notes should be written up on the same day.

21. Having regard to all of the above, the Panel accepted the evidence of Witness 1 that the records for 30 March 2016, 20 April 2016 and 25 May 2016 were not present when the preliminary audit was done. Given the records were not completed within 12 hours, contemporaneous treatment notes were not placed on Child A’s file in a timely fashion. This allegation was therefore proved.

Particular 1(b) – proved

 

22. This particular was similar to the preceding particular in that the three patient records pertinent were missing at the point of the preliminary audit undertaken by Witness 1.

23. The Tynedale system shows appointments for Child A on 7 May 2015, 7 October 2015 and 15 October 2015 were attended.

24. The Registrant acknowledged in her written representations to the Investigating Committee that she was uncertain if Child A had been seen on the three dates identified in this particular, and suggested that "if there are no entries this is possibly because they were UTAs or DNAs and whilst I accept that I should have recorded these in the notes, it is possible that I forgot to do so" (E5).

25. The Panel were satisfied that this particular was proved.

Particular1(c) – proved

 

26. Witness 1 and Witness 2 both confirmed that the department expected records to follow the SOAP methodology of recording:-

S Subjective information (i.e. the views of the patient / carer)

O Objective (professional objective observations and treatment interventions such as range of movement, length of time etc).

A Analysis / Assessment (professional consideration of the subjective and objective information and the conclusions drawn as a result)

P Plan (how the treatment will be developed to reach the overall goal or objective)

27. It is evident from the notes in relation to Child A that objective measures set are absent from the health care record. There is no "O" discernible for many entries made by the Registrant (e.g. 24 June 2015, 16 July 2015 etc) and even where it is present, the entries tend to relate to observations or comments as opposed to an objective and measurable assessment of the patient’s condition or treatment. For example, the "O" recorded for 20 May 2015 is "Chair too small – adjusted".

28. The Panel was satisfied that objective measures were not identified and or recorded in respect of Child A. This particular had therefore been proved on the balance of probability.

Particular 1(d) – proved

 

29. The Panel accepted that the approach to document analysis can vary between individual professionals. Having carefully considered the Registrant’s notes for Child A, the Panel noted there was limited analysis of some appointments and these were not consistent.

 

30. The Panel determined that the Registrant had not consistently recorded either her professional analysis of Child A’s progress, or how effective her treatment of Child A had been. Accordingly, this particular is proved.

Particular 1(e) – proved

 

31. Both witnesses gave evidence as to the importance of setting goals for all patients. They both stated that, regardless of the age or complexity of condition, goals were necessary and important for patients and their carers to work towards and goals may change over time. For younger patients goals may focus on helping them master physical skills, whereas for older children they may relate more to independence from parents and carers. Witness 1 confirmed that goal setting assisted in motivating patients as well as providing objective measurements as to the treatment.

 

32. The Registrant referred to Child A (and twin, Child B) as having "ongoing targets of improving mobility and making them as independent as possible" however she accepted that the goals "should have been more clearly stated in their notes". She also stated that `Many of my caseload were long term patients who I saw for many years, to manage as well as treat them. Short term goal setting was often not appropriate due to the very slow rate of change".

33. The Panel noted that the Registrant’s view of goal setting was directly contradicted by both witnesses and there was no evidence of any goals being set in the notes provided to them. It was satisfied that it was necessary for the Registrant to set and record goals with Child A and that she had not done so. This particular is proved.

 

Particular 2(a) – proved

 

34. Child B was the twin of Child A and as a consequence the children attended most appointments together. This particular was identical to particular 1(a). The Registrant had addressed the particulars in respect of Child B and Child A together, and the witnesses did not identify any differences between them. The Panel therefore found this particular proved for the same reasons set out above in relation to particular 1(a)

Particular 2(b) – proved

 

35. This Particular was identical to particular 1(b), save that there was a difference in the final date. The Panel was satisfied that appointments, according to the Tynedale system occurred on 7 May 2015, 7 October 2015 and 27 July 2016, yet there were no treatment notes from the Registrant on Child B’s health care record for any of these appointments. The Panel therefore found this particular proved.

Particular 2(c), 2(d) and 2(e) – proved

 

36. As with Child A’s records, the Registrant’s notes for Child B were deficient in the areas identified in (c), (d) and (e) and therefore the Panel found these particulars proved.

Particular 3(a) – not proved

 

37. Witness 1 identified a number of matters not covered in the health care record dated 22 October 2015, stating that there was "minimal detail" in the records. The Registrant did not comment on this aspect in her written representations.

38. The Panel was satisfied that there was an entry in respect of treatment on 22 October 2015.There was an assessment of Child C on this date, though the information recorded in respect of treatment was limited. The Panel was satisfied that a qualified physiotherapist would be able to identify the treatment provided from the notes that had been made by the Registrant on that date. Accordingly the Panel determined that this particular was not proved.

 

Particular 3(b) – proved

 

39. Witness 1 again referred to the "SOAP" recording protocol and noted that in several notes for this child, there was no analysis. The Registrant did not address this individual particular.

40. The Panel considered the health care records provided to them in respect of Child C and noted that the Registrant had made a total of seven entries on this child’s record between 22 October 2015 and 3 February 2016. Two of these contacts did not involve the Registrant seeing Child C, and only one (22 October 2015 – D100) included any analysis or assessment of the patient. The Panel was satisfied that the Registrant had not consistently recorded her analysis of the effectiveness of treatment for Child C on the health care record and therefore this particular was found proved.

Particular 3(c) – proved

 

41. Witness 1 highlighted that Child C had undergone Botox treatment and a surgical procedure and that it was important that, once the cast was removed, a block of physiotherapy was implemented to maximise the benefit of the procedure. If this did not happen, the window of opportunity to realise an improvement in Child C’s condition would be lost. The Registrant saw the patient two days after the cast was removed (on 22 October 2015) but the child was reported as being in pain, therefore it would be unrealistic to expect goals to be set at that point. However, the Registrant then saw Child C again on 28 October 2015, by which time the child was pain free and doing exercises. No goals were recorded on that occasion or during any of the subsequent contacts the Registrant had with Child C and or his care-givers. The only plan was for the Registrant to visit the patient at school and for the patient to continue with exercises. It follows that because no goals were set, there was no outcome measures to be re-tested. Accordingly the Panel was satisfied that this particular had been proved.

Particular 3(d) – proved

 

42. The evidence of Witness 1 was that when the preliminary audit was commenced (May 2016), it was noted that Child C had last been seen in January 2016 and there was no plan in place and the child was therefore "lost to follow up". When the second audit was undertaken, the health care record contained an entry dated 3 February 2016 reflecting a conversation between the Registrant and Child C’s father. Witness 1 was clear this note was not in the file when she conducted her initial audit. The Panel accepted this entry was written retrospectively after the initial audit and therefore the particular was proved.

Particular 4(a) – proved

 

43. The Tynedale appointment system records that Child D attended the service on 22 May 2014 and 4 December 2014. There are no notes on the records.

44. The Registrant’s written representations in respect of this patient state that "This patient may not have been seen on these days and it is highly possible that this was a mistake on the Tynedale system……it is possible that I gave the wrong information as I was not at work and busy doing other things". She also said that "the computer system was updated without me being asked if patients had been seen or not" and "Whilst I accept that updating the computer was my responsibility, with only 2 computers between up to 7 physios / assistants working in one tiny work space, it was sometimes not possible to access the computer to update my diary in a timely fashion."

 

45. The Panel took account of the entry on Child D’s health care record by the Registrant dated 19 May 2014 which refers to "Annual r/v on Thursday 22". From this entry, combined with the Tynedale record, and Registrant’s admission that she sometimes couldn’t update her diary in a timely fashion, the Panel concluded that it was more likely than not that appointments had taken place on the dates specified and no corresponding entry was made on the health care record by the Registrant. As a result, the Panel found this particular proved.

 

Particular 4(b) – proved

 

46. Child D was seen nine times by the physiotherapy service in 2014, then not at all between 19 December 2014 and 2 July 2015. No explanation is provided within the health care records for this change in frequency of contact with the Service. This patient was identified by Witness 1 as having a lifelong neurological condition and the Registrant’s recorded plan for treatment on 18 December 2014 was "to continue", which would not indicate such a marked change in appointment pattern.

47. The Registrant accepted that cancellation of appointments should have been recorded in the health care record, however she also observes that "the patient may have cancelled appointments and not re-booked". She also states that "it is common practice to review patients every 6 or 12 months due to the nature of the caseload". She makes no comment on the change in pattern of the appointments.

48. In the light of the above information, the Panel were satisfied that the Registrant had not seen and or recorded seeing Child D between 19 December 2014 and 2 July 2015 and this particular was therefore proved.

Particular 4(c)(i) – (iii) - proved

 

49. Witness 1’s evidence was that the deterioration in Child D identified within the Registrant’s notes on 2 July 2015 was such that the parents should have been informed and the treatment plan updated, including by the provision of a home exercise plan, details of which the witness believed should be recorded in the health care record.

 

50. The Registrant stated in her written submissions that "The patient’s parents may have been contacted but I may have failed to record it in the patients notes. Again, I recognise the importance of recording this information but if it was a phone call that happened between other patient’s appointments I may not have recorded it due to time restraints. I did not have any administrative time routinely built in to my diary to catch up with such tasks."

51. Given that the health care record does not reflect any update as having being provided either to the parents of Child D or to the treatment plan, and the acceptance by the Registrant that she could have failed to record the updates, the Panel considered particulars 4(c)(i), 4(c)(ii) and 4(c) (iii) proved.

 

Particular 4(d) - proved

 

52. Witness 1 confirmed that there were no cancelled appointments recorded on the Tynedale System for Child D. The Registrant stated that "the patient may have been offered earlier appointments and subsequently cancelled, or may not have been able to attend sooner" as an explanation of the period of time between appointments. However, her own notes dated 2 July 2015 reflected that she would not review Child D until after the summer holidays – a period of some 2 months. There was no explanation for this time frame even though the Registrant had noted the apparent deterioration of Child D and that the equipment (AFO’s / orthotics) and footwear had worn out unusually quickly (D126).

 

53. The Panel was satisfied that this Particular had been proved on the balance of probability.

Particular 4(e) – not proved

 

54. The Panel was satisfied that there was evidence of a number of objective measures being recorded by the Registrant in relation to Child D. While not comprehensive or complete, there was sufficient information within the notes to comprise an adequate record. Accordingly, this Particular was not proved.

Particular 4(f) - proved

 55. The Panel were unable to identify any analysis by the Registrant of the treatment given and its impact on Child D. The Registrant did not offer any explanation for this. The Panel was satisfied that the particular had been proved.

Particular 5(a) – (c) – proved

 

56. Child E was a patient with a long term neurological condition who was seen by the Registrant on multiple occasions between 3 July 2014 and 15 September 2016. Although the Registrant recorded some detail of each visit, the Panel was unable to identify any evidence of patient goals and outcome measures, the treatment provided by the Registrant or any justification for continuing regular appointments for this patient. The Registrant noted "doing well. Very active. Doing lots of activities at home" on the first entry with the planned treatment recorded as "encouraged – continue with activities". Despite this, Child E was seen on a number of further occasions over the next two years.

 

57. The Panel was satisfied that particulars 5(a), 5(b) and 5(c) had been proved on the balance of probability.

Particular 6(a) and (c) – not proved

 

58. Child F was a patient with gross motor delay and gait dysfunction. Witness 1’s evidence was that the records were not sufficient, though she did concede that Child F was not co-operative with the service. She identified a number of additional comments that could have been included in the notes. However, the Panel was concerned only with whether there was sufficient information in the notes. The Registrant did not address these two particulars in her submission.

59. The Panel was satisfied that, taken as a whole, the health care notes were adequate and contained sufficient objective evidence, though they could not be described as comprehensive. Particular 6(a) was therefore not proved.

60. In relation to Particular 6(c) the Panel was provided with a screen shot of the Tynedale system confirming an appointment on 21 May 2016 however there was no evidence provided to the Panel as to when the Registrant’s notes were u in the file. The next appointment in the Registrant’s notes is recorded as 16 June 2016 which flows from the notes on 21 May 2016. The Panel was not satisfied on the balance of probability that the Registrant failed to make a timely contemporaneous record of a meeting with Child F on 21 May 2016 and therefore this particular was not proved

 

Particular 6(b) - proved

 

61. The Panel carefully considered the note relating to Child F and noted the absence of any goals. The Registrant’s position on goals was that they were often not needed due to the length of time she had been engaging with the family or the prognosis. The Panel determined that this particular was proved.

Particular 7(a) – not proved

 

62. The Panel noted that the Selective Dorsal Rhizotomy (SDR) surgery for Child G was undertaken in October 2014 and that the first record provided to them was a year later, dated 23 October 2015. There was therefore no evidence as to whether the Registrant had assessed the success of the surgery appropriately. This particular was therefore not proved.

 

Particular 7 (b) - proved

 

63. The Panel noted that funding for increased physiotherapy was in place for a time limited period. However, Witness 1’s evidence was that you would not expect any patient to move from three physiotherapy visits per week to none for nine months – the expectation would be a gradual stepping down of service involvement over time. The Panel carefully considered the Registrant’s notes on Child G and noted that the patient was not seen between 17 December 2015 and September 2016. This particular is proved.

Particular 7 (c) - proved

 

64. The Panel noted that "continue" need not necessarily be an inappropriate plan of treatment, provided that the records show what plan was being continued. The Panel was aware that it had only been supplied with the records from the period which was audited, however it would have expected that, within that 2 year period, the plan would have been updated and therefore detail been provided in the health care record of Child G. The Registrant stated that "The patient had exercise programmes issued from the hospital in America that he had been instructed to continue with long term by the surgeon. His compliance was very poor and it was not appropriate to give him a new exercise programme as the original one was appropriate and was the specific plan issued by the hospital that performed the surgery". The health care record did not contain this information. This particular is proved.

Particular 7 (d - f) - proved

 

65. The Panel carefully examined the Registrants notes in relation to Child G and noted that goals were not consistently set or recorded and as such, no outcomes or measures were recorded. It is clear from the notes that the Registrant had not consistently analysed and recorded Child G’s medical problems or the effectiveness of her treatment, nor had she recorded providing a home exercise programme.

66. The Panel considered particulars 7(d) to 7(f) proved on the balance of probability.

 

Particular 8(a)(i) to 8(a)(iv) - proved

 

67. Child H was referred to the Service as a consequence of falls and a worsening gait pattern. The Registrant accepted that she could have provided more information in the health care record as to why she treated the patient as she did, and it was clear from the record that the Registrant had not completed assessments of neurotesting for neuromuscular weakness. The Panel therefore finds these sub-particulars proved.

Particular 8(b) and (c) – proved

 

68. As set out above, the Registrant accepted that she should have provided more detail in the health care records. The Panel carefully considered the Registrant’s records in relation to Child H and noted that they did not include a copy or record of the patient’s exercise programme, therefore this particular was proved.

Particular 9(a), 9(b) and 9(c) - proved

 

69. The health care records show a relatively comprehensive entry for 12 May 2016 by the Registrant, but the Panel considered that there was insufficient detail provided in the health care records for all appointments in relation to treatment and its effectiveness, analysis of the patient’s condition, the goals set or the measures applied. As such, Particulars 9(a), 9(b) and 9(c) are proved.

 

Particular 10(a)(i) and 10(a)(ii) - proved

 

70. Child J was noted to have cerebal palsy and spastic diplegia as a result of an acquired encephalopathy. The Registrant saw Child J at school on 17 September 2015 and discussed the use of a standing frame but did not record that safety advice had been provided. The Registrant points out that this patient had always had a standing frame at school and therefore the school were familiar with it and the safety implications would have been discussed in the appointment. She accepted that she should have recorded details of the safety advice given in the health care record. Particulars 10(a)(i) and 10(a)(ii) were therefore proved.

 

Particular 10(b) and 10(c) - proved

 

71. Witness 1 stated that the Tynedale system showed an appointment attended on 10 December 2015, but this was disputed by the Registrant who believed "It is likely that the entry on the computer system to confirm his attendance was incorrect and possibly entered by admin staff who were not aware of whether he had attended or not". The Panel was satisfied that the Registrant was aware that a failure to attend an appointment should be recorded in the health care record. She had done so when Child J did not attend appointments on 26 November 2015 and 30 March 2016. Accordingly, the Panel determined that Child J did attend and that the Registrant did not record in detail the …..treatment. Further, this was not placed on file in a timely manner. In all the circumstances, particulars 10(b) and 10(c) are proved.

Particular 11(a) – not proved

 

72. Child K was a teenager with spinal cerebellar ataxia. Both Witness 1 and Witness 2 considered the information recorded by the Registrant in relation to treatment to be unacceptable. The Registrant noted significant difficulties in getting Child K to comply with treatment. The Panel was satisfied that the Registrant recording that "advice was given" was a valid treatment option. Particular 11(a) was therefore not proved.

Particular 11(b) and 11(c) - proved

 

73. In this instance the Registrant had in fact identified a goal of "increasing activity" in her notes for Child K but had not identified the outcome measurement by which this would be assessed. The Registrant also had not consistently recorded an adequate analysis of the patient’s condition and whether treatment was effective. Therefore Particulars 11(b) and 11(c) were proved.

Particular 11(d) - proved

 

74. The Registrant’s entry on the health care record states that her appointment on 13 October 2015 was with Child K at school. The entries for February and June 2016 do not identify the location of the appointment as being school and each make reference to a need to attend the school to teach the exercises. There is however no entry to confirm that the Registrant visited the school or taught the teaching assistant the exercises. The clarity of the record is also compromised by the use of the abbreviation "TA" for both "teaching assistant" and "tendo-achilles". The Registrant confirmed that she had made "many attempts to arrange a school visit with this child but it proved very difficult…..I had spoken to school to try and arrange a visit on numerous occasions but due to my limited working hours and availability of school staff I had not yet been successful". The Panel were therefore satisfied that particular 11(d) had been proved.

Particular 12- proved

 

75. Witness 2 gave evidence that these observations were required to provide an accurate baseline for the patient. The Registrant stated that "There might not have been any specific stability / strength observations to make".

 

76. The Panel noted that there was no evidence of strength and stability measures in the health record of Child L from the Registrant and therefore the particular was proved.

Particular 13(a) – proved

 

77. Child M had Gross Motor Function Classification System (GNFCS) level V motor disorder with athetosis, a neurological condition, and attended a boarding school. She had equipment at school and equipment at home for school holidays. The school addressed her physiotherapy needs during term-time and the Trust were responsible for her needs in school holidays. According to Child M’s health records, the Registrant attended Child M at home on 28 October 2015 and identified that additional equipment was required for the standing frame. Although the records noted the Registrant emailing Child M’s mother to confirm she would order the accessories, there is no evidence this was done at that time and on 23 August 2016 the Registrant notes "Check standing frame order". There was no evidence that any equipment was ordered until on 8 September 2016 when the Registrant attended Child M to set up the new standing frame. The Registrant states that any accessories were ordered and fitted. There is no record of a company representative assessing the patient for appropriate equipment or arrangements for this to be done. The Panel determined that this particular is proved.

Particular 13(b) – proved

 

78. The Panel carefully considered the Registrant’s notes relating to Child M. The Registrant did not see Child M or record any appointment between 28 October 2015 and 23 August 2016 despite having identified that additional accessories were needed. The Registrant confirmed that she had not seen Child M in that timeframe and also stated "It is completely acceptable that she was not seen …" (E8). This Particular was therefore proved.

Particular 13(c)(i) – proved

 

79. On 8 September 2016 the Registrant did visit Child M and, because she was not weight bearing due to a surgical procedure, set up the new standing frame using measurements only. Witness 1 considered this to be unsafe practice which could have caused serious injury to the patient. The Registrant did not address this particular in her comments.

 

80. The Panel was satisfied that the Registrant had acted as alleged and the particular was therefore proved.

 

Particular 13(c)(ii) - proved

 

81. The Registrant recorded on 8 September 2016 that she was content for the mother of Child M to adjust the standing frame that the Registrant had set up by measurement. Witness I’s opinion was that this was unsafe practice. The equipment had not been used by Child M before regardless of the experience of Child M’s mother. This particular was therefore proved.

Particular 14(a) and 14(b) - proved

 

82. Child N had a diagnosis of Noonan’s Syndrome, a genetic disorder with varying clinical presentations. Having considered the health records the Panel accepted Witness 1’s evidence that the health care records for the four visits undertaken by the Registrant do not contain details of treatment, nor did they provide an adequate analysis to enable changes in the patient to be monitored. Particulars 14(a) and 14(b) are proved.

Particular 14(c) – not proved

 

83. The Registrant states the Child N had not been discharged as surgery was planned and this was noted in the health care record. The Panel were satisfied that it was appropriate in these particular circumstances for the Registrant to leave the patient on the file. This particular was therefore not proved.

Particular 15(a) to 15(c) - proved

 

84. The only visit the Registrant made to Child O was on 3 June 2015. From the Registrant’s records of Child O, the Panel was satisfied that the Registrant had not recorded an analysis of Child O’s condition or set or recorded goals or outcome measures. The Registrant stated that she had organised a visit to school but that this had been cancelled by the school. The Panel was unable to identify this within the health care record of Child

O. Particulars 15 (a - c) are proved.

Particular 15(d) - proved

 

85. The Panel took account of the records of Child O where, on 3 June 2015, the Registrant wrote that she planned to order equipment. The Registrant did place the order for the equipment, but not until some 3 months later. She did not record in the health care record when the order was placed or what steps she had undertaken to order the equipment.

  

86. Particulars 15(a) to (c) is proved.

Particular 16(a) - proved

 

87. Child P is the twin of child F and has cerebral palsy. Botox injections were given the week before 22 April 2015. Witness 1 confirmed that regular physiotherapy is required following Botox therapy to maximise the benefit of it. The Registrant did not see Child P for a month after the therapy, and then only observed a PE lesson. The registrant does not address the issue of treatment post Botox therapy and asserts that "there was only a month between appointments; this was not unusual". The Panel was satisfied that particular 16(a) is proved.

 

Particular 16(b) - proved

 

88. The Registrant confirms that she ordered the patient’s walker and acknowledges her mistake in not recording that fact in Child P’s health care records. The Panel noted that the need for a new walker was identified by the Registrant on 21 May 2015 and 24 February 2016. Particular 16(b) was therefore proved.

Particular 16(c - d) - proved

 

89. The need for a new standing frame was also identified by the Registrant on 21 May 2015. This was not discussed with Child P’s mother until 24 February 2016. The Registrant states she recalls discussing the standing frame with Child P’s mother but does not say when this happened, and accepts it should have been recorded in the health care record. The Registrant had not actively progressed the plan for a new standing fame. Particular 16(c) is proved.

 

90. The Panel had not been provided with details of the Trust’s safeguarding policy, however Witness 1 confirmed that the Registrant attended annual safeguarding training. The Registrant in her response said that safeguarding was not required as the child was already known to social services. Witness 1’s evidence was that the fact that vulnerable patients may already be known to social services is no justification for note ensuring Child P was safe. In fact, this could raise more concerns about a child’s safety. The Panel was satisfied that the Registrant did not take adequate steps to ensure Child P was safe after being informed that Child P had left school with no forwarding details and accordingly, Particular 16(d) was also proved.

 

Particular 17(a) to (e) - proved

 

91. Child Q had quadriplegic cerebral palsy. The health care records for Child Q show that the Registrant did not see Child Q in the timeframe set out at Particular 17(a). The Panel was satisfied that Child Q was not seen by the Registrant in the specified time-frame. This sub-particular was therefore proved.

 

92. The Panel found that the health care record completed by the Registrant did not record a clear analysis of Child Q’s problems or a detailed physical assessment on 6 January 2016, therefore sub-particulars 17(b) and (c) were also proved.

 

93. Having identified that an alternative walker was required, the Panel was satisfied that there was an unacceptable delay in securing a suitable replacement. It accepted that the Registrant did arrange an unsuccessful trial of equipment in May 2016 however by the time the Registrant left her employment with the Trust in October 2016, Child Q still did not have a walker. Particular 17(d) was therefore proved.

94. The Registrant did order a walker on 15 September 2016 but this was still awaited when Child Q saw Witness 1 on 10 October 2016. There was a note on the order form which appeared to be from the Registrant identifying that the walker was ready but she "ran out of time". There was no detail as to which accessories should accompany the walker. The Panel was satisfied that the Registrant should have identified which accessories a child with needs such as child Q would benefit from, and accordingly Particular 17(e) was proved.

Particular 18(a)– proved

 

95. Although Child R did not have a definitive diagnosis, he had a neurological condition causing issues with his motor skills.

 

96. The Panel was satisfied that the Registrant had not recorded any safety advice being given when the new walker was set up at an appointment on 19 March 2015. The Registrant made no comment on this failure and the Panel was satisfied that the particular is proved.

 

Particular 18(b)– proved

 

97. The Registrant said that Child R did receive a treatment block, however the Panel noted that this had not been provided by the next appointment on 4 June 2015. Particular 18 (b) is therefore proved.

Particular 18(c)– proved

 

98. There was no evidence in the health care record that the Registrant had provided a home exercise programme for Child R. The Registrant stated that the school were following an exercise programme and did not address the issue of a home exercise programme. The Panel found Particular 18(c) is proved.

Particular 18(d)– proved

 

99. The Registrant agreed to make a wheelchair referral for Child R on 10 June 2015 but this was not completed until 21 January 2016. The Registrant did not address this particular and at no stage has an explanation been offered for the delay. The Panel was satisfied that Particular 18(d) is proved.

Particular 18(e)– proved

 

100. The Registrant did not consider the tipping of the walker to be an issue which required reporting, and the Panel were not provided with any policy of the Trust in relation to what would be a reportable incident. The Panel was satisfied that a registered physiotherapist should be aware of the professional expectation on them to report such incidents, particularly when the equipment was being used inappropriately and a modification was required to reduce the risk of injury to Child R. Particular 18(e) is proved.

Particular 18(f)– proved

 

101. A visit had been scheduled for Child R at school in January 2016 however this visit did not take place until 5 May 2016. No explanation was recorded by the Registrant for this. The Panel found this sub-particular proved.

Particular 18(g)– proved

 

102. Witness 1 stated that when she undertook the preliminary audit there was no reference to a call with Child R’s mother on 16 June 2016. She believed it had been added by the Registrant after 7 September 2016, when the Registrant was advised that a referral had been made to the HCPC. The Registrant did not address this issue in her submissions. The Panel accepted the evidence of Witness 1 in relation to the documents available to her during her audit process and accordingly found this sub-particular proved.

Particular 19 (a) to (c) – proved

 

103. Child S, had been diagnosed with CHARGE syndrome. The Registrant did not address any of these particulars. The Panel was satisfied that there were not sufficient observations recorded, that no treatment plan was provided and that there was no follow-up treatment provided between 24 June 2013 and 17 January 2015. Particulars 19 (a) to (c) are therefore proved.

Decision on Statutory Ground

104. Having determined the facts and found some particulars proved, the Panel considered whether the statutory grounds of Misconduct and or Lack of Competence were applicable in the light of the facts found proved. No further consideration was given to the particulars that were found not proved. The Panel was aware that determining the issue of misconduct and / or lack of competence was entirely a matter for their judgement. Aside from misconduct and lack of competence, the statutory grounds of impairment set out within the Health and Social Work Professions Order 2001 at article 22(1) had not been alleged by the HCPC (i.e. criminal conviction or caution, physical or mental health, or a finding of impairment by a regulatory body) and were not therefore considered by the Panel.

105. The Panel took into account the oral submissions of the Presenting Officer on behalf of the HCPC, and the limited comments submitted by the Registrant to the Investigating Committee before she voluntarily absented herself. It accepted the Legal Assessor’s advice and had regard to guidance issued by both the HCPC and HCPTS, particularly in relation to the "Approach to Fitness to Practice Proceedings" and "Finding Impairment". The Panel was aware that lack of competence can be distinguished from misconduct in that it indicates an inability to work at the required level and connotes a standard of professional performance which is unacceptably low, demonstrated by reference to a fair sample of a registrant’s work. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. The Panel also bore in mind the explanation of that term given by the Privy Council in the case of Roylance v GMC (No.2) [2000] 1 AC 311 where it was stated that:

 

"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 misconduct is qualified in two respects. First, it is qualified by the word ‘professional’ which links the misconduct to the profession ... Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.

106. In terms of assessing competence, the Panel were assisted by the case of Holton v General Medical Council [2006] EWHC 3187 (Admin), where the High Court held that in assessing lack of competence, the standard to be applied was that applicable to the post to which the registrant had been appointed and the work they were carrying out. The Panel determined that the conduct of the Registrant did not amount to lack of competence – it was clear from the records available to the Panel that the Registrant was capable of performing her role to a competent standard.

107. The Panel noted that there was no burden or standard of proof when determining whether the facts found proved amounted to one of the two statutory grounds. The Panel was to exercise its own professional judgment when making its decision.

108. The Panel concluded that the Registrant was a senior physiotherapist with responsibility for coordinating and supporting other physiotherapists. She had worked at a physiotherapist at the Trust since 1998. Witness 1’s evidence was that she herself had been previously trained by the Registrant. There was evidence in the patient records that the Registrant’s standards were on occasion those of a registered physiotherapist. In these circumstances the Panel concluded that the grounds did not amount to a lack of competence.

109. The HCPC has adopted Standards of Proficiency for Physiotherapists as well as standards in relation to conduct, performance and ethics that apply to registrants of all professions regulated by HCPC. The Panel considered that the following standards for Physiotherapists (2013 edition) had been breached by the Registrant:

4.2 be able to make reasoned decisions to initiate, continue, modify or cease techniques or procedures, and record the decisions and reasoning appropriately

 

4.4 recognise that they are personally responsible for and must be able to justify their decisions

8.6 understand the need to provide service users or people acting on their behalf with the information necessary to enable them to make informed decisions

9.4 be able to contribute effectively to work undertaken as part of a multi-disciplinary team

9.5 understand the need to agree the goals, priorities and methods of physiotherapy intervention in partnership with the service user

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines

14.5 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment

14.14 be able to select, plan, implement and manage physiotherapy interventions aimed at the facilitation and restoration of movement and function

15.1 understand the need to maintain the safety of both service users and those involved in their care

15.3 be aware of applicable health and safety legislation, and any relevant safety policies and procedures in force at the workplace, such as incident reporting and be able to act in accordance with these

110. The Panel also found that the Registrant had breached standards set out in the standards of conduct performance and ethics (2012 edition):

      1. You must act in the best interests of service users.

You must act within the limits of your knowledge, skills and experience and, if necessary, refer the matter to another practitioner

You must communicate properly and effectively with service users and other practitioners

10. You must keep accurate records.

and the following standards from the 2016 edition:

Promote and protect the interests of service users and carers

Communicate appropriately and effectively

Work within the limits of your knowledge and skills

Manage risk

Report concerns about safety

10. Keep records of your work

 

111. The Panel noted that breach of the standards alone does not necessarily constitute misconduct. Having assessed all of the particulars, the Panel identified that the following particulars did not amount to serious professional misconduct:-

(i) 8(a)(i), 8(a)(ii), 8(a)(iii), 8(a)(iv)

12

13(c)(i)

 

112. It found that all of the other particulars demonstrated conduct and behaviour that fell far below the standards expected of a registered practitioner. The Registrant was a highly specialised physiotherapist and repeatedly failed to meet the standards expected of her in relation to the lives of the vulnerable children that she was responsible for treating. Particularly serious issues were the failure to maximise windows of opportunity for treatments – such as the six weeks after botox therapy, or post surgery, and those instances where there was a risk of harm to individual patients. However, even the matters which would appear to be less serious were in fact important, such as the inconsistency of treatment of patients and the failure to ensure that the Registrant’s highly specialised skills were utilised for the patients who needed them most.

113. The Panel was satisfied that the following particulars amounted to misconduct by the Registrant:-

1(a), 1(b), 1(c), 1(d), 1(e), 2(a), 2(b), 2(c), 2 (d), 2(e), 3(b), 3(c), 3(d),

4(a), 4(b), 4(c)(i), 4(c)(ii), 4(c)(iii), 4(d), 4(f), 5(a), 5(c), 6(b), 7(b), 7(c),

7(d), 7(e), 7(f), 8(b), 8(c), 9(a), 9(b), 9(c), 10(a)(i), 10(a)(ii), 10(b), 10(c),

11(b), 11(c), 11(d), 13(a), 13(b), 13(c)(ii), 14(a), 14(b), 15(a), 15(b),

15(c), 15(d), 16(a), 16(b), 16(c)(i), 16(c)(ii), 16(d), 17(a), 17(b), 17(c),

17(d), 17(e), 18(a), 18(b), 18(c), 18(d), 18(e), 18(f), 18(g), 19(a), 19(b),

19(c)

 

Impairment

 

114. Having determined that the Registrant’s conduct amounted to the statutory ground of misconduct, the Panel had regard to the Practice Note issued by the Health and Care Professions Tribunal Service (HCPTS) entitled "Finding that Fitness to Practise is Impaired", and noted that, in determining whether fitness to practise is impaired, it must take account of a range of issues which, in essence, comprise two components:

the ‘personal’ component:

the current competence, behaviour etc. of the individual registrant; and

 

the ‘public’ component:

the need to protect service users, declare and uphold proper standards of behaviour and maintain public confidence in the profession.

115. The Panel considered the Registrant’s current fitness to practise firstly from the personal perspective and then from the wider public perspective.

 

116. The Panel found that the Registrant had limited insight and demonstrated a lack of judgment and a disregard for the wellbeing of her patients. As there has been no engagement from the Registrant in these proceedings save for selective comments provided in February 2017, there is no evidence before the Panel that the Registrant fully appreciates the gravity of her misconduct and there is no reflection on the impact her conduct had upon patients, colleagues and the wider profession. The Registrant had demonstrated that her conduct was capable of remediation by providing improved health care records towards the end of her employment however there was no evidence of it being sustained for any period of time. There was no explanation as to how she would behave differently in the future and no assurance that such serious misconduct would not be repeated, save for her assertion that she did not wish to continue to practice as a physiotherapist.

 

117. The Panel also took into account that the Registrant had not expressed any remorse for her behaviour. The patients she was treating were particularly vulnerable by virtue of their age and health but the Registrant did not have the best interests of service users at the forefront of her practice or apply her professional standards in a consistent manner.

118. In the absence of any information with regards to the Registrant’s current level of insight and any steps she has taken towards remediation since leaving the Trust, the Panel concluded that there is a real risk of repetition. As a consequence, the Panel has determined that there is a current and ongoing risk of harm to patients. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.

119. In considering the public component the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. Members of the public would be extremely concerned to learn that a physiotherapist had failed to deliver planned treatment or ensure patients were safe. It is critically important that colleagues and service users can rely on physiotherapists at all times. A significant aspect of the public component is upholding proper standards of behaviour. The Registrant’s conduct fell far below the standard expected of a registered practitioner.

120. The Panel found that the Registrant poses a risk to patients, has brought the profession into disrepute, has breached a fundamental tenet of the profession by failing to act in the best interest of patients and has demonstrated a lack of insight. There is a risk that all of these features are likely to be repeated in the future.

121. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made and concluded that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest.

Sanction

122. Having delivered the above findings, the Panel invited the Presenting Officer to address it as to sanction. An appropriate period of time was allowed for the formulation of submission on sanction.

123. The Presenting Officer referred the Panel to the HCPC Indicative Sanction Policy. In her opinion the Panel had already accurately identified the aggravating and mitigating features of this case. The purpose of imposing a sanction was not to punish the Registrant but to ensure that the public was protected, promote public confidence in the profession and provide a deterrent to other registrants.

 

124. When considering what, if any, sanction was appropriate in this case, the Panel was mindful that each case must be determined on its own merits. The HCPTS has adopted a policy in respect of indicative sanctions to aid panels to make fair, consistent and transparent decisions. It was also aware of the need to give clear and cogent reasons for its decision, particularly if departing from the policy. It received and applied advice from the Legal Assessor in relation to the imposition of a sanction.

125. The purpose of fitness to practise proceedings is not to punish but to:

protect the public by ensuring that registered health care professionals practise to a minimum universal standard;

maintain public confidence in the regulatory process;

protect the reputation of the profession concerned;

act as a deterrent to other registrants.

126. Article 29 of the Health and Social Work Professions Order 2001 provides that the sanctions available to a panel to protect the public are:

Mediation;

 

Caution;

Conditions of practice;

Suspension;

Striking off;

no further action is required.

127. When determining the appropriate level of sanction, panels must be proportionate so that the sanction:

Is appropriate in the circumstances;

Secures the protection of the public;

Takes account of the wider public interest;

Is the least restrictive means of securing public protection;

Is proportionate and strikes a proper balance between the rights of the Registrant and the protection of the public.

 

128. The Panel found the following aggravating features:

 

the failings in the Registrant’s practise were fundamental, particularly in relation to recordkeeping;

the children in her care had been exposed to a risk of harm by her failings;

the failings occurred over a sustained period of time;

there was a lack of insight by the Registrant as to the potential consequences of her failures of practice;

there was no evidence over a sustained period that the Registrant had remediated her practise and there was a risk of repetition;

there were multiple highly vulnerable patients;

there were multiple failings over an extended period of time.

129. There were however also mitigating factors in that the Registrant had an unblemished regulatory record prior to this allegation and there had been no complaints recorded. The two witnesses had not identified any issues with the actual treatment of patients.

 

130. The Panel determined that the Registrant had not demonstrated remorse or sufficient insight and there was a high risk of repetition. As result, it was not appropriate for the Panel to take no action. It noted that there was no outstanding dispute as the Registrant had left the employ of the Trust and therefore mediation was also an inappropriate sanction in this matter.

131. The Policy identifies that a caution order may be an appropriate sanction for cases where the lapse is isolated, limited or relatively minor in nature, or there is a low risk of recurrence, or the Registrant has shown insight and taken appropriate remedial action. The Panel considered that none of these factors was present in this case. In any event, the policy is clear that a caution order is unlikely to be appropriate in cases where the registrant lacks insight and the Panel did not therefore consider that a Caution Order would be appropriate in this matter given the lack of any insight or remediation shown by the Registrant.

132. The Panel therefore moved on to consider whether a Conditions of Practice order would be appropriate. The purpose of a Conditions of Practice order is to restrict a registrant’s practice, require the registrant to take remedial action or impose a combination of both. Imposition of a Conditions of Practice order means that the panel is satisfied that the registrant is capable of practising safely with appropriate training, guidance and support. However, conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues to be addressed and can be trusted to make an effort to do so. The Policy points out that Conditions of Practice are unlikely to be suitable where, as in this case, the Registrant has lacked insight or engagement with the regulator. She stated in her submission that she no longer wishes to practise. The Panel found that a Conditions of Practice would not be an appropriate sanction in this case.

133. Given that the Panel considered that neither a Caution nor a Conditions of Practice Order would provide sufficient public protection, suspension from practice was considered to be the only appropriate and proportionate sanction. At this stage the Panel considered a Suspension Order would protect the public, act as a deterrent to others, maintain confidence in the profession and uphold standards of the profession and that of the regulator.

134. Having determined that a Suspension Order was the appropriate sanction, the Panel considered the period of suspension, mindful of the HCPTS policy statement that suspensions should not exceed one year. In this case, the Panel believed that it was appropriate to suspend the Registrant from practice for a period of 12 months. The Panel considered this to be appropriate and proportionate given the potential for harm to the public and a risk of repetition. The 12 months would also allow the Registrant time to reflect on her practice, develop insight and undergo further training, although the Panel recognised she could not practice as a physiotherapist.

135. The Panel went on to consider a Striking off but considered at this stage a Suspension Order would be sufficient to protect the public and mark the seriousness of the matters found proved.

 

 

136. A suspension cannot be made subject to conditions, however, it may assist a future panel, when this order is reviewed, if the Registrant could present evidence as to how she has developed and reflected on the areas of concern found in relation to this allegation – i.e. record keeping, safeguarding issues, commissioning equipment etc. This might be achieved by undertaking training and / or maintaining a reflective portfolio and / or receiving support from a mentor. However, the Panel recognised that it cannot be prescriptive and its recommendations do not bind or fetter the discretion of a future panel considering this matter.

 

 

Order

ORDER:

That the Registrar is directed to suspend the registration of Ms Zoe L. Flello for a period of 12 months from the date the Substantive Order comes into effect, and to suspend the registration of Ms Flello in accordance with the Interim Order subject to a maximum period of 18 months.

The Order imposed today will apply from 4 January 2019.

 

 

 

Notes

 

Interim Order:

The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest. This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

Hearing History

History of Hearings for Miss Zoe L Flello

Date Panel Hearing type Outcomes / Status
03/12/2018 Conduct and Competence Committee Final Hearing Suspended