Patricia Garcia Barragan

Profession: Occupational therapist

Registration Number: OT71174

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 18/12/2018 End: 17:00 19/12/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Struck off

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Allegation

Whilst registered as an Occupational Therapist with the Health and Care Professions Council:

1) On or around 23 March 2016 during the course of your contractual employment as a Band 5 Occupational Therapist at Pilgrim Hospital:

a) instructed Person A, a junior colleague, to complete a section for your own reference.

b) placed crosses against indicators within your own work reference, in relation to your work competence and/or skills

c) planned to return the work reference to Person B for a confirmation of the reference by way of an official work stamp

2) Your actions at 1a, 1b and 1c were dishonest.

3) The matters as described in paragraph 1 and 2 constitute misconduct.

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

 

Finding

Preliminary matters

Proof of Service


1. The Panel was provided with a signed certificate as proof that the Notice of Hearing had been sent in a letter, dated 22 October 2018, by first class post, to the address shown for the Registrant on the HCPC register.  The Notice of Hearing was also sent to the Registrant via email on the same date. The Panel was satisfied that Notice had been properly served in accordance with Rule 3 (Proof of Service) and Rule 6 (date, time and venue) of the Conduct & Competence Committee Rules 2003 (as amended).

Proceeding in Absence

2. Having determined that service of the Notice of Hearing had been properly effected, the Panel went on to consider whether to proceed in the Registrant’s absence, as permitted by Rule 11 of the Conduct & Competence Rules 2003 (as amended). The Panel was advised by the Legal Assessor and followed that advice. The Panel also took into account the guidance as set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”.

3. The Panel determined that it was reasonable and in the public interest to proceed with the hearing for the following reasons:

(i) The Registrant sent an email to the HCPC, dated 22 October 2018, in which she stated, ‘Sorry I will not attend the hearing.’ The Panel noted that the Registrant’s statement that she would not attend the hearing was consistent with the indication that she gave in the undated letter that she sent to the HCPC on or around June 2017. In that letter she stated, ‘I can confirm that I shall not be attending the hearing in person.’ In these circumstances, the Panel was satisfied that the Registrant’s non-attendance was voluntary and was therefore a deliberate waiver of her right to attend and her right to participate in the hearing.

(ii) There has been no application for an adjournment and no indication that the Registrant would attend on any future date. Therefore, re-listing this case would serve no useful purpose.

(iii) The Panel noted that the HCPC had arranged for two witnesses to give evidence via video link and that the relevant events date back to March 2016. The Panel concluded that, in the absence of any good reason to re-schedule the hearing, the witnesses should not be inconvenienced by an unnecessary delay and should give evidence whilst the events are reasonably fresh in their minds.

(iv) As this is a substantive hearing there is a strong public interest in ensuring that it commences and proceeds expeditiously. It is also in the Registrant’s interest that this hearing is considered as soon as possible.


Background


4. The Registrant qualified as an Occupational Therapist in Spain in 2009. She made an application for registration with the HCPC which was received on 26 January 2015.

5. The Registrant was employed as a Band 5 Occupational Therapist at Pilgrim Hospital (the hospital) on a locum basis from 9 February 2016 to 23 March 2016.

6. The HCPC opened the case on the basis that:
• On 23 March 2016, the Registrant asked a colleague, Person A, to complete part of a work reference as though she was Person B, a previous employer in Spain. The skills part of the reference, which appeared in a grid format with columns labelled ‘good’, ‘very good’, etc. which had already been completed when Person A saw the reference form. The Registrant asked Person A to complete the free text portion of the reference and informed her that she, the Registrant, had written out separately what she wished the reference to say.
• Person A did not agree to complete the reference and reported the matter to her line manager, Witness HT.
• An investigatory meeting took place on 23 March 2016.  During the meeting the Registrant accepted having asked Person A to complete the reference. However, she stated that she said she had been asked to do so by Person B who did not speak English and was “lazy”. She initially denied acting dishonestly and maintained that this was common practice in employment agencies.
• The HCPC alleged that the Registrant’s actions were dishonest.
Assessment of Witnesses
Witness HT – Team Lead Occupational Therapist (Elderly Care Team)

7. Witness HT line managed the Registrant and Witness AC (Person A) during the relevant period.

8. The Panel found Witness HT to be a credible and reliable witness. Despite the passage of time she had a good recollection of the events that took place and did her best to assist the Panel. Her oral evidence was consistent with her witness statement which the Panel found to be fair, measured and balanced. Witness HT stated that she had a good working relationship with the Registrant. She informed the Panel that apparently the Registrant had not worked in a hospital setting and appeared to welcome the supportive environment. She stated although the Registrant needed some assistance with her written English, she did not require assistance with spoken English.
Witness AC (Person A) - Band 2 Occupational Therapy Assistant

9. Witness AC was an Occupational Therapist for approximately 12 years until 2009, when she decided to become an Occupational Therapy Assistant for personal reasons. She informed the Panel that she did not know the Registrant well because she never worked with the Registrant as her assistant, but used to see her in the morning and at the end of her sift.

10. The Panel found Witness AC’s evidence to be clear and helpful.  She answered the questions she was asked to the best of her knowledge and there was no attempt to exaggerate or embellish her evidence. Her oral evidence was consistent with her witness statement and the Panel had no reason to doubt her credibility or reliability.
Panel’s Approach

11. The Panel was aware that the burden of proving the facts was on the HCPC. The Registrant did not have to prove anything, and the particulars of the Allegation could only be found proved, if the Panel was satisfied, on the balance of probabilities.

12. The Panel noted that during the hospital’s internal investigatory meeting on 23 March 2016, the Registrant allegedly made partial ‘admissions’. However, the Panel noted that the Registrant denied the Allegations in the undated letter she sent to the HCPC on or around June 2017. Therefore, the Panel proceeded on the basis that none of the particulars were admitted.

13. In reaching its decision, the Panel took into account all of the documentary evidence including the written submissions provided by the Registrant which were forwarded to the HCPC on 8 August 2018 and the oral evidence of both HCPC witnesses.

14. The Panel accepted the advice of the Legal Assessor. The Committee noted that in accordance with the Supreme Court decision in Ivey v Genting Casinos [2017] UKSC 67 the test for dishonesty is an objective test only. The Committee first had to determine the Registrant’s actual knowledge or belief and then determine whether her acts or omissions were, on the balance of probabilities, dishonest by the ordinary standards of reasonable and honest people.

Decision on facts

Particular 1(a) – Found Proved
‘On or around 23 March 2016 during the course of your contractual employment as a Band 5 Occupational Therapist at the Pilgrim Hospital: asked Person A, a junior colleague, to complete a section of a work reference for you, as though she was Person B’

15. Witness AC informed the Panel that, on 22 March 2016, the Registrant approached her and asked her to fill in a form more than once and asked her again in the morning on the following day. Witness AC stated, during her oral evidence, that she did not have an independent recollection of the date because she provided her witness statement ‘quite a while after the event.’ However, she informed the Panel that she had reported the incident to Witness HT the day after she had first been approached by the Registrant. Witness HT informed the Panel, in her witness statement, that during a scheduled supervision session with Witness AC, which took place on 23 March 2016, stated that the Registrant had asked her to complete a reference form earlier that morning. The Panel accepted the evidence of Witnesses AC and HT and concluded that the incident occurred on or around 23 March 2016.

16. Witness AC informed the Panel that on the second day that she was approached, the Registrant explained that she wanted Witness AC to complete the form because ‘[he or she] knows what my handwriting looks like.’ Witness AC did not know who ‘he or she’ was but she informed the Panel that having agreed to complete the form she realised that ‘something was not right’.  Witness AC stated that she was provided with a Spanish name to write on the form; which she did. She also hand wrote the organisation name and the job title on the form.

17. The Panel accepted the evidence of Witness AC. The Panel was provided with a copy of the reference form and was satisfied that the hand-written entries on the form, were made by Witness AC on the instruction of the Registrant to give the impression that they had been written by Person B.

18. Accordingly, particular 1(a) was found proved.

Particular 1(b) – Found Proved
‘instructed Person A, a junior colleague, what to write in the work reference for you.’

19. The Panel took into account its findings in relation to particular 1(a). The Panel accepted the evidence of Witness AC that Person B’s name, the organisation, the Registrant’s job title at the end of the form and her employment dates as set out at the start of the form were provided by the Registrant. The Panel was satisfied that these details could only have come from the Registrant.

20. The Panel concluded that the details hand written on the reference form by Witness AC was on the instruction of the Registrant.

21. Accordingly, particular 1(b) was found proved.
Particular 1(c) – Found Proved
‘placed crosses against indicators within a work reference for you, in relation to your work competence and/or skills, before providing it to Person A for completion.’

22. The Panel accepted the evidence of Witness AC that when she ‘scan read the rest of the page’ after writing the details provided by the Registrant, she noticed that a number of the competencies/skills had already been ‘ticked’. She recalled that they had either been ‘ticked’ as ‘excellent’ or ‘good’.  Witness AC informed the Panel that it was at that point that she said ‘I can’t do this anymore’ or words to that effect and gave the form back to the Registrant.

23. The Panel noted that although Witness AC referred to a series of statements with a ‘tick box’ the markings were crosses. Witness AC confirmed that the form within the hearing bundle was the form that she had been asked to complete. In the meeting on 23 March 2016 the Registrant is reported to have said “there was nothing on it”, there were “just crosses”. The Panel therefore concluded, that the reference form had already been marked with the crosses when it was provided to her by the Registrant.

24. Accordingly, particular 1(c) was found proved.


Dishonesty – Found Proved

25. The Panel noted that an employment agency sent Person B an email, dated 9 March 2016, enclosing a reference form. On 10 March there was an email exchange between the Registrant and Person B with regards to the reference which had been translated from Spanish to English. The Registrant in her email had stated, ‘You should stop receiving this as I have changed the references, at least I hope so. Thank you very much.’ The response from Person B was, ‘I am very sorry but I cannot send you more. Send me a standardized one and I will sing (sic) it for you. Regards.’ The Panel was satisfied that it was within the context of trying to obtain a reference from Person B, whilst complying with Person B’s wish to be inconvenienced as little as possible, that the Registrant approached Witness AC. 

26. The Panel was satisfied that at the time the reference form was provided to Witness AC, the Registrant was well aware that Witness AC was not Person B. The Registrant also knew that Person B only wanted to be provided with a document that he or she could sign. The Panel also accepted the evidence of Witness AC that the Registrant indicated that she had not completed the form herself because she was concerned that her handwriting would be recognised. The Panel noted that the typed record of the investigatory meeting that took place on 23 March 2016, was not a verbatim record and the Registrant had not been invited to comment on its accuracy after the document had been produced. Therefore, the Panel afforded the ‘admissions’ little weight.

27. Irrespective of the comments attributed to the Registrant in the typed record of the investigatory meeting the Panel was satisfied that the Registrant’s actions were an attempt to produce a reference from Person B that had not been completed by Person B. In doing so, the Registrant provided Witness AC with a partially completed form with the competencies/skills pre-marked and asked Witness AC to write the details on the form page in the name of Person B, to give the impression that it had been completed by Person B.  The Panel was satisfied that the Registrant’s actions were conscious and deliberate. The Panel took the view that members of the public would regard such conduct and behaviour to be dishonest by the standards of reasonable and honest people.


Decision on Grounds

Panel’s Approach
28. Having found particulars 1(a), 1(b), 1(c) and 2 proved, the Panel went on to consider whether the Registrant’s conduct amounted to misconduct.

29. The Panel took into account the oral submissions made by Ms Sharpe, the written submissions provided by the Registrant at the conclusion of the investigation stage and accepted the advice of the Legal Assessor.

30. In considering the issue of misconduct, the Panel bore in mind the explanation of that term provided 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 of medicine. Secondly, the misconduct is qualified by the word ‘serious’. It is not any professional misconduct which will qualify. The professional misconduct must be serious.”

Decision on Misconduct

31. The Panel concluded that the Registrant’s conduct and behaviour breached the following standards of the HCPC Standards of Conduct, Performance and Ethics:
• 9.1 You must make sure that your conduct justifies the public’s trust and confidence in you and your profession.
• 9.2 You must be honest about your experience, qualifications and skills.

32. The Panel was aware that breach of the standards alone does not necessarily constitute misconduct. However, the Panel took the view that the Registrant’s conduct and behaviour fell far below the standards expected of a registered practitioner. References are integral part of an employers’ duty to ensure that employees and prospective employees meet the standards required to be able to provide safe and effective care to patients. The Panel also noted that locum practitioners are expected to be able to work autonomously and fit into a new team quickly. Therefore, even greater reliance is placed on skills and competencies that demonstrate these abilities. The Panel took the view that the Registrant dishonestly attempted to circumvent the integrity of the recruitment process and concluded that such behaviour is sufficiently serious to be characterised as misconduct.


Decision on Impairment


Panels Approach


33. The Panel went on to consider whether the Registrant’s fitness to practise is currently impaired. The Panel took into account the submissions of, Ms Sharpe, on behalf of the HCPC and the Registrant’s written submissions. The Panel also took into account the HCPTS Practice Note: ‘Finding that Fitness to Practise is Impaired’. The Panel accepted the advice of the Legal Assessor.

34. In determining current impairment the Panel had regard to the following aspects of the public interest:
• The ‘personal’ component: the current behaviour 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.
Panel’s Decision

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

36. The Registrant’s dishonest attempt to produce a reference purporting to be from Person B represented a breach of her employers’ trust and a lack of judgment.  The Panel noted that the relevant events date back to March 2016. The Panel noted that the responses attributed to the Registrant in the typed record of the investigatory meeting indicate that, at least by the end of the interview, she had some awareness of the seriousness of the concern that had been raised. However, as the Registrant did not accept the accuracy of that record the Panel placed greater reliance on her letter in response to the investigation stage, which was received by the HCPC on or around June 2017. This letter was again sent as an attachment to the HCPC by email in August 2018. The covering email stated “this is all I have to say”. The August 2018 version of the Registrant letter included an additional two paragraphs. In both letters the Registrant appeared to be offended by the suggestion that she had done anything wrong and focussed on the ‘wrongs’ that had been done to her and the impact on her personal and professional life.

37. The Panel recognised that demonstrating remediation in a case involving dishonesty is particularly difficult, as probity issues are reliant on attitude, which can often only be inferred from conduct.  Dishonest conduct can be remediated provided that there is evidence of sincere and meaningful reflection that demonstrates that the dishonesty is firmly in the past and is not a deep-seated attitudinal trait. However, as there has been limited engagement from the Registrant during these proceedings there was insufficient evidence before the Panel that she fully appreciates the gravity of her misconduct, 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. The Registrant’s dishonest conduct demonstrated a conscious and deliberate attempt to mislead her employer and in the absence of meaningful insight the Panel concluded that there is a risk of repetition.

38. The Panel concluded that for these reasons the Registrant’s fitness to practise is currently impaired based on the personal component.

39. 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.

40. The Panel took the view that members of the public would be extremely concerned that a registered Occupational Therapist had attempted to circumvent the procedure for obtaining and verifying references. It is critically important that colleagues, employers and the public can rely on the honesty and integrity of HCPC registered practitioners at all times.

41. 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 and brought the profession into disrepute, breached a fundamental tenet of the profession by putting her own interests above her professional duty to be honest and trustworthy and demonstrated a lack of integrity.

42. In all the circumstances the Panel determined that public trust and confidence would be undermined if a finding of impairment is not made.

43. The Panel concluded that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest and therefore the HCPC’s case is well-founded.

Decision on Sanction

Submissions


44. Ms Sharpe, on behalf of the HCPC, referred the Panel to the HCPC Indicative Sanctions Policy and reminded the Panel that its primary function is to protect the public and the wider public interest. Although Ms Sharpe made no positive submission with regard to the sanction that should be imposed, she indicated that a Conditions of Practice Order is unlikely to be appropriate. She confirmed that the Registrant has not been made subject to any other regulatory referrals.
Panel’s Approach

45. The Panel accepted the advice of the Legal Assessor. The Panel was mindful that the purpose of any sanction is not to punish the Registrant, but to protect the public and the wider public interest. The public interest includes maintaining public confidence in the profession and the HCPC, as its regulator, and upholding proper standards of conduct and behaviour. The Panel applied the principle of proportionality by weighing the Registrant’s interests with the public interest and by considering each available sanction in ascending order of severity.

46. The Panel had regard to its findings in relation to misconduct and impaired fitness to practise. The Panel also took into account the Indicative Sanctions Policy (ISP) and the submissions made by Ms Sharpe, on behalf of the HCPC.

Panel’s Decision

47. In determining the appropriate sanction, if any, the Panel considered and balanced the mitigating and aggravating factors.

48. The Panel determined that the following mitigating factors apply to the Registrant:

• No other adverse regulatory findings have been made against the Registrant;
• The Panel are not aware of any concerns with regards to her clinical practice as an Occupational Therapist;

49. The Panel determined that the following aggravating factors apply to the Registrant:
• The Registrant’s request to a junior colleague to write a reference in the name of Person B was repeated on more than one occasion;
• The Registrant was willing to involve another individual in her attempted deception;
• The Registrant’s actions involved a degree of pre-planning;
• The Registrant has not provided any explanation for her actions, nor an alternative account;
• The Registrant has demonstrated only limited insight, choosing instead to focus on the impact on herself rather than her standing as a registered professional, the reputation of her profession, and the wider public interest.

No Action


50. The Panel first considered taking no action. The Panel concluded that, in view of the nature and seriousness of the Registrant’s misconduct and in the absence of exceptional circumstances, to take no action would be wholly inappropriate. Furthermore it would be insufficient to protect the public, maintain public confidence and uphold the reputation of the profession.

Caution Order

51. The Panel went on to consider a Caution Order. The Panel noted paragraph 28 of the ISP which states:
“A caution order is an appropriate sanction for cases, where the lapse is isolated, limited or relatively minor in nature, there is a low risk of recurrence, the registrant has shown insight and taken appropriate remedial action.  A caution order should also be considered in cases where the nature of the allegation means that meaningful practice restrictions cannot be imposed but where the registrant has shown insight, the conduct concerned is out of character, the risk of repetition is low and thus suspension from practice would be disproportionate.  A caution order is unlikely to be appropriate in cases where the registrant lacks insight.”

52. Although the Registrant’s dishonest attempt to produce a reference purporting to have been completed by Person B took place over the course of two days in March 2016, the Panel was unable to characterise it as an isolated incident or ‘out of character’. There was an indication from the Registrant in the investigatory meeting records that this may not have been the first time that she had used this method to obtain a reference purporting to be from Person B. The typed notes record that the Registrant stated that ‘this would have been the last time she needed to falsify a reference on behalf of the Person B as she had a job offer starting next week.’ The Panel noted that the Registrant’s first language is not English and made allowances for the fact that the note may not actually reflect what the Registrant was trying to say. Nonetheless the Panel was unable to rule out a pattern of behaviour.

53. In any event, in view of the Panel’s findings that the Registrant has demonstrated limited insight into her misconduct and whilst the risk of repetition remains, the Panel concluded that a Caution Order would be inappropriate and insufficient to meet the public interest.

Conditions of Practice Order

54. The Panel went on to consider a Conditions of Practice Order. The Panel bore in mind that any conditions imposed would need to be appropriate, proportionate, workable and measurable.

55. The Panel noted that the ISP states at paragraph 33:
‘…conditions of practice are unlikely to be suitable in cases:
• where the registrant has failed to engage with the fitness to practise process, lacks insight or denies any wrongdoing;
• where there are serious or persistent overall failings; or
• which involve dishonesty, breach of trust...’
56. The Panel concluded that dishonestly involving a junior colleague in an attempt to produce a reference purporting to be from Person B is not amenable to conditions, as the basis for this type of misconduct, is an attitudinal failing. The Panel was unable to formulate conditions which would be workable, measurable or proportionate. Furthermore, conditions would not adequately address the serious nature of the misconduct and so would undermine public confidence in the profession and undermine the need to uphold standards of conduct and behaviour.

Suspension Order


57. The Panel next considered a Suspension Order. A Suspension Order would send a signal to the Registrant, the profession and the public re-affirming the standards expected of a registered Occupational Therapist. However, the Registrant has demonstrated very limited insight into her wrongdoings and has not remediated her previous misconduct to the extent that there remains a risk of repetition. The Registrant, in the letter attached to her email, dated 18 August 2018, stated, ‘I am done with this. It has been 29 months, don’t you think is more than enough punishment? (sic) Don’t you think this could have been resolved at least 18 months ago? I can’t go on with life untill (sic) you finish this so please, I am finally begging you to make a decision. Enough is enough.’

58. In these circumstances a Suspension Order would not be sufficient to maintain public trust in the profession and the regulatory process and would not have a deterrent effect on other registrants.  The Panel balanced the wider public interest against the Registrant’s interests. In doing so, the Panel took into account the consequential personal and professional impact these proceedings may have had upon her.

Striking Off Order

59. Having determined that a Suspension Order does not meet the wider public interest the Panel determined that the Registrant’s name should be removed from the Register. A Striking Off Order is a sanction of last resort and should be reserved for those category of cases where there is no other means of protecting the public or the wider public interest. The Panel decided that the Registrant’s case falls into this category because of the nature and gravity of her misconduct, her persistent lack of insight and the risk of repetition.

60. The Panel was also satisfied that any lesser sanction would undermine public confidence. The Panel had regard to the impact a Striking Off Order would have on the Registrant but concluded that her interests were significantly outweighed by the Panel’s duty to give priority to the significant public interest concerns raised by this case.

61. With regard to the Registrant’s non-engagement with the regulatory process the Panel noted the judgment in NMC v Parkinson [2010] EWHC 1898:

“A [practitioner] who has acted dishonestly, who does not appear before the Panel either personally or by solicitors or counsel to demonstrate remorse, a realisation that the conduct criticised was dishonest, and an undertaking that there will be no repetition, effectively forfeits the small chance of persuading the Panel to adopt a lenient or merciful outcome and to suspend for a period rather than to direct [A Striking Off Order].”

62. In this case the Registrant has disengaged from the hearing stage of this process. In doing so, she has not offered the Panel any opportunity to exercise leniency.

63. The Panel decided that the appropriate and proportionate order is a Striking Off Order.

Order

That the Registrar is directed to strike the name of Miss Patricia Garcia Barragan from the Register on the date this order comes into effect.

Notes


The order imposed today will apply from 16 January 2019.

Hearing History

History of Hearings for Patricia Garcia Barragan

Date Panel Hearing type Outcomes / Status
18/12/2018 Conduct and Competence Committee Final Hearing Struck off