Mr Kieran McDermott

Profession: Physiotherapist

Registration Number: PH91782

Interim Order: Imposed on 22 Jan 2018

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 22/01/2018 End: 17:00 22/01/2018

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

Allegation found proved at the substantive hearing:

During the course of your employment as a Physiotherapist at University Hospital Birmingham NHS Foundation Trust between June 2012 and 31 March 2015, you:

1. Were unable to consistently work as an autonomous Band 5 physiotherapist, in that you:

a) required a sustained level of guidance whilst working with patients;

b) were unable to consistently hold a full case load as expected of a Band 5 Physiotherapist.

2. Did not consistently maintain accurate and/or adequate and/or contemporaneous records in that you:
a) between June 2012 and December 2012, did not consistently provide sufficient information in patient notes;
b) between June 2012 and December 2012, produced Patient notes which lacked subjective and/or objective measures;

c) between June 2012 and December 2012, did not consistently record subjective markers;

d) on or around February 2013, in relation to Patient C, did not document:

i. which hip had been mobilised;

ii. your reasoning as to why the hip mobilisations were performed on Patient C;

iii. which specific mobilisation was performed.

e) on or around October 2013, required consistent reminding and/or prompting to maintain patient records;

f) on or around June 2014, completed a manual assessment of neck accessory movements on Patient E and did not record:

i. which joints had been palpated;

ii. the grade of palpation;

iii.  what range of accessory movement issue was found.
g) on or around October 2014, you:

i. were unable to accurately record assessment and treatment sessions for patients;

ii. omitted information from records including gait pattern and/or hands on treatment.

h) on or around December 2014, did not consistently record evidence of clinical reasoning on patient records.

i) In or around October/November 2013, in relation to Patient D your records did not identify:

i. the exercises performed in relation to the patient;

ii. your clinical reasoning for the insertion of the nasophararyngeal airway (NPA);

iii. any treatment/management plan in respect of the NPA.
3. Demonstrated poor assessments and/or treatment to patients, in that you:

c) did not consistently read patient notes prior to treating the patient;

d) did not consistently provide appropriate treatment to patients;

e) did not consistently provide reasoning for:

ii. straight leg raise;
iii.  leg length; 
iv.  gait analysis.

f) did not consistently form hypotheses from the assessments you conducted on patients;

g) on or around August 2013, you were unable to and/or could not demonstrate measuring range of shoulder movement;

h) on an unknown date, during your rotation at the Royal Orthopaedic Hospital, you inaccurately measured a patient’s leg length following hip surgery;

i) on or around 15 August 2012, during your rotation at the Royal Orthopaedic Hospital, you did not ask a patient had had a microdisectomy about red flags including:

i. Coughing;
ii. Sneezing;
iii. Bladder function; and/or
iv. Bowel function.

4. Did not consistently demonstrate adequate clinical reasoning:

a) in relation to treatment planning;

b) in relation to modification of the patient’s treatment;

c) in that during a discussion with your colleague in relation to Patient B, you were unable to independently provide clinical reasoning for applying manual resistance as part of the patient assessment conducted on 4 January 2013;

d) in that on or around 24 October, when completing the gym transfer form in relation to Patient H, you did not record the patient’s diagnosis and/or treated Patient H without knowing their diagnosis. 

e) on or around June 2014, in relation to patient E, you were unable to provide clinical reasoning for your manual assessment of neck accessory movements on Patient E;

f) on or around October 2014, you were unable to clinically reason why a patient may be presenting with a deficit.

5. Demonstrated poor patient safety, in that you:

a) on or around August 2012, prescribed excises to patients in a hip class without checking the patients’ conditions and/or the appropriate precautions;

b) on or around 14 September 2012, in respect of Patient A, you:

i. did not consider and/or demonstrate clinical reasoning in respect of which leg the patient should lead with on climbing stairs;

ii. did not provide the patient with specific instruction prior to asking them to climb the stairs;

d) on or around 4 January 2013, in relation Patient B, who had had rotator cuff repair surgery, you applied manual resistance for strength;

f) on or around October 2014, conducted physiotherapy exercise with Patient F which was unsafe;

g) on 17 October 2014, requested Colleague A’s assistance to move Patient G on and/or off the floor but proceeded to move Patient G despite the risk;
h) on a unknown date, during your rotation at the Royal Orthopaedic Hospital, you asked a patient with a hip replacement to use the leg press machine;

i) on or around 24 August 2012, you placed a patient who had had a microdisectomy into a slump position

7. Did not consistently communicate effectively with patients and/or colleagues in that you:

c) on or around 27 May 2014, were aggressive towards Colleague A and Colleague B when they discussed discharge planning with you.

8. Did not consistently demonstrate adequate time management.

9. The matters set out in paragraphs 1 – 8 constitute lack of competence.

10.  By reason of your lack of competence your fitness to practise is impaired.

Finding

Background

1. On 16 June 2017 a Panel of the Conduct and Competence Committee determined that 46 particulars were proved, that the proved facts constituted a lack of competence, that the Registrant’s fitness to practise remained impaired, and that the appropriate sanction was a Suspension Order for twelve months. The Registrant appealed against this decision to the High Court. The appeal in respect of sanction was allowed. Yip J ordered that:

“1. Grounds 1, 2, and 3 of the appeal are dismissed. For the avoidance of doubt there shall stand the findings of the Respondent’s Conduct and Competence Committee (“the Committee”) in its decision the subject of the appeal, in relation to the charges proven, the Appellant’s lack of competence, and the impairment of the Appellant’s fitness to practise.

2. Ground 4 of the appeal is allowed to the extent indicated in the Respondent’s Conduct and Competence Committee (“the New Panel”) to be disposed of in accordance with the direction in paragraph 4 below.

3. The case shall be remitted to a freshly constituted panel of the Respondent’s Conduct and Competence Committee (“the New Panel”) to be disposed of in accordance with the direction in paragraph 4.

4. The New Panel shall impose a Conditions of Practice Order on the Appellant with such terms and for such length as it sees fit”.

2. This Final Hearing is the hearing of the New Panel to determine the terms and length of the Conditions of Practice Order in accordance with the Order of Yip J. In this decision the previous Panel who made the determination on 16 June 2017 will be referred to as the “2017 Panel”.

3. The Registrant qualified in 2009 and joined the University Hospitals Birmingham NHS Foundation Trust (“the Trust”) in a rotational role as a Band 5 physiotherapist. Between 2009 and 2012, he worked in various different departments. In May 2012, he commenced a musculoskeletal rotation based in the physiotherapy gym at the Royal Orthopaedic Hospital (“ROH”). By the end of June 2012, concerns had been raised about the Registrant including in relation to the accuracy of patient assessments. Some patients were said to be unhappy with the treatment they had received from him. These issues were raised with the Registrant and he responded by saying that he was having trouble using the record system at the ROH. In July 2012, he sent an e-mail to Catherine Elliott, Head of Physiotherapy at the Trust, indicating that he felt he was struggling at ROH. After discussion of the concerns, the Registrant was told that his performance would be managed using the poor performance procedure (“PPP”).

4. The Registrant has dyslexia. Evidence before the June 2017 Panel suggested that this impacted on his processing speed and working memory and may cause difficulty with note-taking. The 2017 Panel found “extensive measures taken by the employer over time to assist the Registrant within a planned programme to facilitate improvement in performance and practice.” The 2017 Panel expressly confirmed that it was not of the view that the Registrant’s dyslexia explained the competence issues or that his lack of clinical competency was related to dyslexia.

5. The Registrant continued to work for the Trust and concerns continued to be expressed. In February 2013, he was moved from Stage 1 to Stage 2 of the PPP on the basis that he had not met the standards set for him. In March 2014, he moved to the neuro-outpatients service. Concerns continued such that in December 2014 it was recommended that he move to Stage 3 of the PPP. On 15 December 2014, the Appellant commenced long term sick leave. He did not return to work and resigned from the Trust in March 2015. The Trust had serious concerns about the safety implications of some of his practice and considered that he required a high level of support which was not sustainable. The Registrant complained that he was being “micromanaged” and that this was increasing his stress levels and, in turn exacerbating his dyslexia-related disability.

6. Following the Registrant’s referral to the HCPC an application was made for and Interim Order. An Interim Order was made in October 2015, imposing Conditions of Practice.

7. In December 2015, the Registrant secured an honorary contract with the Birmingham Community Healthcare NHS Trust (“the Community Trust”) allowing him to undertake unpaid voluntary work at Moseley Hall Hospital as a Band 5 physiotherapist but subject to the conditions of practice imposed under the interim order. He began this work in January 2016, working seven hours a day on four days a week. The Registrant maintained this voluntary employment up to the time of the 2017 Panel decision. There were periods of absence due to ill health. By the time of the 2017 Panel decision, he had been in the voluntary post for about seventeen months. The feedback from the community Trust was positive.

8. The decision of the 2017 Panel was that the areas of lack of competence demonstrated by the findings of fact were that the Registrant failed to demonstrate proper clinical reasoning and to keep accurate clinical records. He also failed to communicate accurate clinical records. There was a worrying lack of improvement despite the extensive measures taken by the employer.

9. The 2017 Panel found that the issues of extensive lack of competence had not been remedied. This gave to a risk to patient safety and/or inappropriate treatment. The 2017 Panel also found that the Registrant demonstrated a worrying lack of insight into his failings. The Registrant showed a tendency to blame others for his condition rather than taking responsibility for his lack of competence.  He failed to recognise that as an autonomous practitioner that he needed to identify and manage these issues. The 2017 Panel concluded that there remained a current risk of harm to the public.

10. In her decision Yip J concluded that the reasons of the Panel did not justify the rejection of a Conditions of Practice Order. In particular:

“In my judgement the Panel overlooked the reality of what had happened since 2015. It had been considered appropriate to make the Appellant subject to a Conditions of Practice Order in the interim period. He had shown extraordinary commitment to his voluntary placement, keeping up a significant number of hours per week in addition to having a paid job to meet his living expenses. He had complied with the conditions imposed, and in that context, had received genuinely positive references. There was no suggestion that public protection had not been maintained. Although the Appellant continued to lack insight into his lack of competence, he had clearly demonstrated a willingness to improve his clinical skills and had taken constructive criticism on board”.

“I also consider it wrong to say that conditions that were workable, practicable and verifiable could not be formulated. Conditions which were considered to offer public protection had been formulated at the interim stage and it was clear that progress had been made under such conditions”.

“In my judgment, taking the Appellant out of practice for a period of 12 months after he has displayed a real commitment to maintain his skills through the long interim period and produced evidence of improvement is not a proportionate sanction. Further, that course is likely to worsen rather than improve the Appellant’s performance and I do not consider that it can be said to maintain the balance between public and private interest”.

Decision

11. Mr Newman outlined the background, but, as is usual, did not advocate appropriate conditions of practice.

12. Ms Brown referred the Panel to the Registrant’s reflective statement and appendices. She submitted that the Suspension Order has had a grave impact on the Registrant. He has lost the honorary contract at the Community Trust. Ms Brown submitted that the Registrant has demonstrated in his reflective statement that he has accepted each of the areas of concern and had made careful and detailed responses in respect of each patient.

13. Ms Brown invited the Panel to consider imposing the same conditions of practice as were imposed in March 2017 as workable, practicable and proportionate conditions. She submitted that an order for no more than twelve months would be appropriate and proportionate.

14. In response to questions from the Panel, Ms Brown told the Panel that the Registrant acknowledged that there is a need for him to adopt strategies in relation to his dyslexia. In particular, the Registrant considered that it was not appropriate for him to work in an outpatient setting, and that it was more appropriate for him to work in a slower paced supportive environment where he would not constrained to short patient appointments.

15. The Panel accepted the advice of the Legal Assessor.

16. The Panel noted that the Registrant’s reflective statement was self-critical and constructive. There were necessarily some limitations in the reflective statement because the Registrant was currently suspended and therefore unable to illustrate any changes in his practice.

17. The Panel decided that there was a need for conditions of practice which specifically addressed the competency concerns in respect of clinical reasoning and maintaining accurate clinical records. A condition requiring the Registrant to nominate a supervisor and to provide supervision reports would be workable and it would not be unduly onerous. The Panel considered that it was sufficient for reports of the supervisor to be supplied to the HCPC every three months. The Panel decided that it would be constructive and proportionate for the supervisor’s reports to address the areas of concern, namely clinical reasoning and the accuracy of his documentation.

18. In addition to the supervision conditions, the Panel decided that there should be conditions tailored to assist the Registrant to address and remedy the deficiencies in his practice. The process of remedying a lack of competence in basic areas of practice was likely to take a period of time and to be incremental. These conditions were designed to protect the public in monitoring the remediation process, and to constructively assist the Registrant to demonstrate to a Review Panel that he had remedied the lack of competence. The Panel decided that there should be conditions requiring the Registrant to formulate a Personal Development Plan (PDP) and to meet with his supervisor to consider his progress towards achieving the aims set out in the Personal Development Plan.

19. The Panel considered carefully whether there should be any restrictions on the Registrant’s practice. The Panel decided that a restriction, which limited the areas of the Registrant’s work, would be unduly onerous and would not strike the appropriate balance between the need to protect the public and the Registrant’s interests. The Panel was satisfied that the Registrant has a sufficient level of insight that he will himself limit the areas in which he will seek work.

20. However, the Panel decided that a restriction that the Registrant should work only at Band 5 level or its equivalent was appropriate and proportionate. The competency concerns found by the 2017 Panel relate to basic physiotherapy skills and tasks. The Panel considered that there would be a risk to the public if the Registrant were to undertake a role, which required him to take on responsibilities in addition to the standard responsibilities of an autonomous practitioner at Band 5. The Panel did not consider that this restriction was an unduly onerous condition or a significant deterrent to a potential employer. Potential employers would be aware from the other conditions of practice that there were ongoing competency concerns and they would therefore expect there to be a significant period of rehabilitation before the Registrant could be considered for promotion. The Panel’s view was that this condition struck an appropriate balance between the need to protect the public and the Registrant’s interests.

21. The Panel considered the appropriate length of time for the Conditions of Practice Order. The Panel decided that the appropriate length of time is eighteen months. The Panel considered that it might take the Registrant some time to secure an appropriate position and that he might initially work in a voluntary position. An eighteen month period would enable sufficient time for the Registrant to progress to a paid position and to be able to provide evidence of his competency in paid employment to a Review Panel. The Panel considered a shorter length of time for the Order, as submitted by Ms Brown, but decided that the longer period of eighteen months was appropriate and proportionate. The Registrant may apply for an early review if that is appropriate.

22. The Panel therefore made a Conditions of Practice Order for a period of eighteen months.

23. The Panel informed the parties of the proposed Conditions of Practice and heard further submissions from both parties in respect of the proposed conditions. The Panel deliberated further and made some alterations to the Conditions of Practice.

Order

The Registrar is directed to annotate the Register to show that, for a period of 18 months from the date this Order comes into effect, you, Kieran McDermott, must comply with the following conditions of practice:


1. If you take up work as a Physiotherapist you must inform the HCPC promptly and you must confine your professional practice to a Band 5 position (or an equivalent level if you are working in the private sector).

2. You must place yourself and remain under the supervision of an HCPC registered Physiotherapist of Band 6 or above ( or an equivalent level if you are working in the private sector) and advise the HCPC of that person’s name within 28 days from the date you commence work as a Physiotherapist.

3. You must work with a named supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(a) clinical reasoning; and

(b) maintaining accurate clinical records.

4. You must forward a copy of your Personal Development Plan to the HCPC within two months from the date you commence work as a Physiotherapist.

5. You must allow a named supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

6. You must obtain a report from a named supervisor and submit the report to the HCPC within three months from the date you commence work as a Physiotherapist. Thereafter you must obtain and submit supervisor reports on a three monthly basis. The reports should address:

(a) your clinical reasoning

(b) your maintenance of accurate clinical records in line with HCPC standards ; and

(c) your progress towards achieving the aims set out in your Personal Development Plan.

7. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with (at the time of application); and

C. any prospective employer (at the time of your application).

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

 

Notes

Interim Order

1. Mr Newman made an application for an interim order for eighteen months on the grounds that it was necessary for the protection of the public and otherwise in the public interest. Ms Brown did not oppose the application.

2. The Panel carried out a balancing exercise. It weighed the ongoing need to protect the public and the need to maintain confidence in the profession and the regulatory process against the impact of an interim conditions of practice order on the Registrant. The Panel decided that any negative impact of an interim conditions of practice order on the Registrant would be limited. The interim conditions would permit the Registrant to continue to practise and would enable him to commence the process of rehabilitation. The Panel considered that any negative impact was outweighed by the need to protect the public because of the finding made by the 2017 Panel that there is a risk to the public.

3. The Panel decided that the interim conditions of practice should be the same as those set out in the Conditions of Practice Order. The Interim Order should be for a period of eighteen months to cover the length of time it might take for an appeal to be concluded.

 

Hearing History

History of Hearings for Mr Kieran McDermott

Date Panel Hearing type Outcomes / Status
22/01/2018 Conduct and Competence Committee Final Hearing Conditions of Practice
12/06/2017 Conduct and Competence Committee Final Hearing Suspended
05/12/2016 Conduct and Competence Committee Final Hearing Adjourned part heard
02/09/2015 Investigating committee Interim Order Application Adjourned