Mrs Bernadette Royles

Profession: Physiotherapist

Registration Number: PH45299

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 12/02/2018 End: 17:00 14/02/2018

Location: Ramada Plaza Wrexham, Ellice Way, Wrexham, LL13 7YH

Panel: Conduct and Competence Committee
Outcome: Caution

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Allegation

During the course of your employment as a Physiotherapist with Betsi Cadwaladr University Health Board, you:

1. Accessed the records of Service User A, without permission and/or professional and/or clinical reason, on:

a. 1 May 2013;
b. 3 May 2013;
c. 14 January 2014;
d. 15 January 2014;
e. 28 October 2014, on two occasions;
f. 30 December 2014, on two occasions;
g. 6 January 2015;
h. 15 April 2015;
i. 2 July 2015;
j. 3 July 2015;
k. 17 July 2015;
l. 21 July 2015;
m. 11 August 2015;
n. 25 August 2015;
o. 4 September 2015;
p. 16 October 2015;
q. 20 January 2016, on two occasions;
r. 21 January 2016;
s. 22 January 2016;
t. 27 January 2016, on two occasions;
u. 28 January 2016.

2. Accessed the records of Service User B, without permission and/or professional reason and/or clinical reason, on:

a. January 2014;
b. 6 February 2014;
c. 25 February 2014;
d. 10 April 2014;
e. 10 June 2014.

3. The matters set out in paragraphs 1 - 2 constitute misconduct.

4. By reason of your misconduct your fitness to practice is impaired.

Finding

Preliminary Matters

Amendment of Allegation

1. Miss Manning-Rees, on behalf of the HCPC, applied to amend the Allegation.  She submitted that the amendments sought were consistent with the evidence before the Investigating Committee, and that they served to clarify the allegation by giving further and better particulars. The amendments Miss Manning-Rees sought were to insert a new Particular 1(a) with the words “1 May 2013” and add the words “, on two occasions” to the current Particular 1(s).

2. Ms Sleeman, on behalf of the Registrant, did not object to the amendments.

3. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the allegation and its particulars, provided no injustice would be caused by the amendments. The Panel considered that the amendments sought were minor and did not change the substance of the allegation. The amendments served to clarify the allegation and would not cause injustice. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above.

Proceeding in private

4. The Panel heard that matters relating to the Registrant’s health were to be discussed as part of this application. Miss Manning-Rees and Ms Sleeman submitted that it was appropriate that parts of the hearing be held in private where any health issues relating to the Registrant and service users were to be discussed. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”). The Panel agreed the parts of the hearing, where reference was to be made to any health issues relating to the Registrant or any person giving evidence or of any patient, should be heard in private.

Background

5. The Registrant has been a Physiotherapist for 25 years. At the time of the incident she was working for Betsi Cadwaladr University Health Board (BCUHB).

6. The service users referred to in these allegations are Service User A and Service User B and both are related to the Registrant by familial bonds.

7. It was discovered that the Registrant had accessed the records of Service User A on 25 occasions and Service User B on 5 various occasions between the 1 May 2013 and 28 January 2016.

8. In terms of confidentiality of patient records, access to information is restricted to those who have specific authority to have access to the information and who clearly have a ‘need to know’ in order to perform their duties. It is alleged that the Registrant accessed the records on the dates in question and she did so without authorisation or good reason.

9. At all material times, the Registrant was up to date with all information governance policies and procedures and had attended the mandatory training with BCUHB.

Decision on Facts

10. The Panel considered all the evidence in this case together with the submissions made by Miss Manning-Rees on behalf of the HCPC, and by Ms Sleeman on behalf of the Registrant.

11. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.

12. The Panel heard oral evidence from Witness 1, who was the Area Head of the Speech and Language Therapy at BCUHB, and who investigated these matters.

13. The Panel also heard evidence from the Registrant, and witnesses called on her behalf as character witnesses.

14. The Panel found all the witnesses to be clear and helpful. Their evidence was consistent internally and with the documentary evidence.

15. The Panel found the Registrant’s evidence to open and honest. It appeared spontaneous rather than rehearsed and it was consistent.

16. The Panel found the Registrant was clearly very distressed about her actions and the difficult personal circumstances surrounding them. She said she was ashamed of what she had done.

17. The Panel also received bundles of evidence on behalf of the HCPC and the Registrant.

18. The Panel firstly considered Particular 1 and 2 of the Allegation in turn. At the start of proceedings the Registrant admitted those particulars. In relation to each part of these Particulars of the Allegation, the evidence, oral and documentary, is consistent with the admission made by the Registrant to each of them. The computer evidence proves the Registrant accessed the records and the Registrant also accepted that she did not have any proper clinical reason for her access. Accordingly the Panel finds these paragraphs proved by way of admission.

Decision on Grounds

19. The Panel then went on to consider whether the factual particulars found proved amounted to misconduct. The Panel heard the submissions of Miss Manning-Rees on behalf of the HCPC.

20. The Panel heard evidence from the Registrant. She told the Panel of her unblemished career and her work history. She stated that throughout her career, she was very conscious of professional boundaries and the need to maintain confidentiality.

21. The Registrant stated that at the time of these matters in relation to Service User A, she had been going through a stressful period of her life.

22. Miss Manning-Rees submitted that the Registrant’s actions breached the following paragraphs of the HCPC’s Standards of conduct, performance and ethics (2012 edition): 1, 2, 3 and 13.

23. The Panel accepted the advice of the Legal Assessor. He referred the Panel to the decisions in the following cases:

a) Roylance v GMC (2000) 1 AC 311

b) Hindmarsh v NMC [2016] EWHC 2233 (Admin)

24. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that Misconduct is qualified by the word “serious”. It is not just any professional misconduct, which will qualify.

25. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual particulars in the light of the following circumstances demonstrated by the evidence:

(a) The Registrant was a Physiotherapist with over twenty years of experience.

(b) There were no issues raised regarding the Registrant’s practice or conduct prior to these matters.

(c) These matters involved multiple access to the service users’ records over a significant period of time.

(d) The Registrant knew Service User A and Service User B, and there was no malice involved nor intended by the unauthorised access to their records.

26. The Panel considered that on the facts found proved the Registrant had breached the following paragraphs of the HCPC’s standards of conduct, performance and ethics:

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

2. You must respect the confidentiality of service users.

3.  You must keep high standards of personal conduct.

13 You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.

27. The Panel accepted that at the time of these matters, the Registrant was experiencing serious stresses in her personal life and retrospectively now accepts that she should have raised this with her line manager at the time. It also recognised that the Registrant was under significant stress at work due to the restructuring of the NHS services across North Wales at the time.

28. However, confidentiality and the integrity of systems designed to protect confidential information are fundamental to the trust that service users have in healthcare professionals and healthcare organisations. Any breach is a serious matter and must be viewed as such.

29. The Panel determined that in the circumstances of this case, that the facts found proved amounted to the statutory ground of Misconduct.

Decision on Impairment 

30. The Panel went on to consider, on the basis of the matters found proved, whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct. The Panel considered the submissions made by Miss Manning-Rees and Ms Sleeman. The Panel also took into account the oral and documentary evidence.

31. The Panel accepted the advice of the Legal Assessor, who drew the Panel’s attention to the test set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and advised the Panel that there were personal and public components when considering whether the Registrant’s fitness to practise was currently impaired.

32. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s misconduct show that her fitness to practise is impaired in the sense that she:
a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the physiotherapy profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the physiotherapy profession?”

33. The Panel was aware that any finding as to impairment was for the independent judgement of the Panel and that what was to be assessed is the Registrant’s current fitness to practise.

34. The Panel took into account the following factors:

(a) the Registrant has demonstrated clear insight into her misconduct. This was demonstrated by her in her oral evidence;

(b) the Registrant admitted her misconduct at the earliest opportunity in respect of Service User A when challenged;

(c) the Registrant initially denied that she had accessed any other person’s records but when the evidence was put to her during the investigation, the Registrant admitted that she had accessed Service User B’s records;

(d) Notwithstanding the Trust’s disciplinary hearing taking place after the Registrant had resigned, she voluntarily attended that hearing and admitted her misconduct. The Panel determined that this demonstrated the Registrant’s commitment to her responsibilities as a Physiotherapist, and her ownership of her misconduct;

(e) the positive steps taken by the Registrant to avoid repetition of her misconduct;

(f) there has been no repetition of the Registrant’s misconduct, nor has there been any other concerns about her practice since these matters arose;

(g) the Registrant gave an example of a similar clinical situation since these matters when she could have repeated her misconduct and how she did not do so. These were corroborated by her current employer, Witness 4 , who gave character evidence on her behalf;

(h) the very positive testimonies given on her behalf by colleagues and her line managers, who have worked with her for many years; and

(i) the impact that these proceedings have had on her.

35. The Panel was satisfied that the Registrant is not liable in future to put the public at risk of harm, nor is she liable in future to bring the profession into disrepute, nor is she liable to breach a fundamental tenet of the profession.

36. However, the Panel determined that these matters were such that the need to uphold proper professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances. A reasonable member of the public with full knowledge of the facts of this case would be concerned if no finding of impairment was made.

37. Therefore, the Panel has concluded that the Registrant’s fitness to practise is currently impaired on the Public Interest ground alone.

Decision on Sanction

38. Having determined that the Registrant’s fitness to practise is currently impaired, the Panel then considered what sanction, if any, should be imposed. It took into account the submissions of Miss Manning-Rees and Ms Sleeman.

39. The Panel accepted the advice of the Legal Assessor. He advised the Panel that it should bear in mind its duty to protect the public and also the wider public interest, which includes maintaining and declaring proper standards of conduct and behaviour, maintaining the reputation of the profession, and maintaining public confidence in the profession and the regulatory process.

40. The Panel had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy. The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.

41. The Panel was aware that any sanction it imposes must be the least restrictive sanction that, in this case, is sufficient to protect the public interest. It should take into consideration the aggravating and mitigating factors in the case. The Panel also reminded itself that it must apply the principle of proportionality, weighing the Registrant’s interest against the public interest. 

Panel’s consideration and decision

42. The Panel has had regard to all the evidence presented, and to the Council’s Indicative Sanctions Policy. This was not a case where the Registrant’s clinical skills are in question. The testimonies of the witnesses attest to the Registrant being a highly competent and caring Physiotherapist. There are no identifiable areas of her practice that might benefit from re-training.

43. The Panel took into account the factors it had done when considering the issue of current impairment. In addition, it took into account the following factors:

a) the Registrant had fully engaged with this regulatory process;

b) no actual harm was caused to any patient or service user;

c) the Registrant has apologised and is clearly remorseful and ashamed of her actions;

d) the stressful and protracted personal circumstances prevailing at the time and the toll that these proceedings have had on her;

e) the Registrant’s previous unblemished record of over twenty-five years as a Physiotherapist; and

f) although all breaches of confidentiality are serious, this misconduct was at the lower end of the spectrum of such misconduct.

44. The Panel first considered taking no action but concluded that the misconduct in this case was too serious for no action to be appropriate.

45. The Panel then considered whether to make a Caution Order. It bore in mind that a caution order would not restrict the Registrant’s right to practise. Whilst this is not an isolated lapse or relatively minor in nature, the Panel was satisfied that it was conduct that was out of character for the Registrant. The Panel was mindful of its finding that the Registrant has demonstrated insight, has taken positive steps to avoid a repetition of her misconduct and has demonstrated that she was unlikely to repeat her misconduct. The Registrant has been held to account, and proper standards of practice and behaviour have been declared by the finding of misconduct and current impairment on public interest grounds alone.

46. The Panel determined that, in this case, the public interest would be met with the imposition of a Caution Order as a sanction. The Panel determined that a member of the public who was fully informed of the above considerations, would countenance the Registrant’s return to unrestricted practice to continue her service to the public.

47. In these circumstances, the Panel concluded that a Caution Order would be sufficient to satisfy the wider public interest.

48. The Panel determined that the appropriate and proportionate period for which the Caution Order should be imposed will be 3 years, given the need for public confidence to be upheld and a deterrent effect on the Registrant and profession at large.

Order

That the Registrar is directed to annotate the register entry of Mrs Bernadette Royles with a caution which is to remain on the register for a period of 3 year(s) from the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Mrs Bernadette Royles

Date Panel Hearing type Outcomes / Status
12/02/2018 Conduct and Competence Committee Final Hearing Caution