Paul R Butler

Profession: Occupational therapist

Registration Number: OT18586

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 17/01/2018 End: 12:00 17/01/2018

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

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

(The following allegation was considered by a Panel of the Conduct and Competence Committee at the substantive hearing on 25 – 27 July 2016)
During the course of your employment as an Occupational Therapist with North Devon Healthcare NHS Trust between April 2003 and 10 May 2013:
1) In March 2012, in relation to two patients, you:
a) Did not conduct Occupational Therapy assessments, which led to the patients being discharged home without seeing an Occupational Therapist.
2) In or around April 2012, you did not record information in the ward log book in order to identify which member of staff had been allocated to each patient and / or which patients had been discharged.
3) Between September 2011 and October 2011, a Clinical Support Worker needed to remind you of tasks on a regular basis.
4) On 16 August 2011, during a home assessment with a patient, you:
a) Made the patient repeat a shower stool position assessment approximately five times;
b) In assessing mobility issues in the patient's lounge, advised the patient to remove her sofa completely, instead of making minor adjustments to the position of other furniture;
5) On 7 March 2013, you were assigned "Patient A" and you:
a) Did not:
i. Set out achievable SMART goals;
ii. Promptly organise the access visit;
iii. Attend the access visit in a timely manner.
b) Produced a report in relation to Patient A which you omitted:
i. Furniture measurements;
ii. Equipment needs and / or details of equipment that was already in-situ in the patient's home;
iii. Flooring types;
iv. The correct type of heating;
v. A summary;
6) On 7 or 8 March 2013, further to a discussion with the wife of "Patient B", you did not record that B's wife stated she could not cope with B at home.
7) The matters set out in paragraphs 1 - 6 constitute misconduct and/or lack of competence.
8) By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
At the substantive hearing the Panel found all of the above particulars (1 – 6) proved. The Panel found that particulars 1, 2, 3, 4(a) and 6 amounted to misconduct and 4(b), 5(a) i – iii and 5(b) i – v amounted to lack of competence. The Panel found the Registrant’s fitness to practise impaired and a Conditions of Practice Order for a period of 18 months was imposed as a sanction.

Finding

Preliminary Matters:
Service and Proceeding in the absence of the Registrant
1. At the hearing the Registrant was neither present nor represented.
2. Ms Bragg on behalf of the HCPC invited the Panel to proceed in the absence of the Registrant.
3. She submitted first that the Panel was entitled to proceed in the absence of the Registrant because there was good evidence that he had been served with notice of the proceedings in accordance with the Health Professions Council (Conduct and Competence) (Procedure) Rules 2003 ("the Rules"). She submitted secondly that the Panel should exercise its discretion to proceed in the absence of the Registrant because the Registrant had acknowledged that he knew of the date of the hearing in an email dated 10 January 2017 and stated that he was “in agreement with the Review Hearing proceeding in my absence as long as my feelings and wishes expressed in my email of 29th December are fully considered.”
4. The Panel received the advice of the Legal Assessor, which it followed and is incorporated in its determination set out below.
5. Accordingly, the Panel approached the question in two stages. First, it considered whether it was entitled to proceed in the absence of the Registrant. Secondly, it considered whether, in all the circumstances, it should exercise its discretion to do so.
Service:
6. The Panel received evidence in the form of a Notice of Hearing dated 12 December 2017 and a certificate of service which showed that notice of the proceedings had been sent by first class post on 12 December 2017 to the address held by the HCPC on the Register of Occupational Therapists.  It also had regard to the email from the Registrant, which demonstrated that he knew of the date of the hearing.
7. The Panel had regard to Rule 3 of the Rules, which provides that the sending of a notice under the rules can be effected by sending it to the Registrant's address as it appears in the Register. It also had regard to Rule 6, which provides that a Registrant is entitled to 28 days’ notice of the hearing. Finally, it had regard to Rule 11 which provides that "where the health professional is neither present nor represented at a hearing, the committee may nevertheless proceed with the hearing if it is satisfied that all reasonable steps have been taken to serve the notice of the hearing under Rule 6 (1) on the health professional.”
8. Finally, the Panel had regard to the guidance given to Panels by the Court of Appeal in GMC v Adeogba [2016] EWCA Civ 162, that in deciding whether reasonable steps had been taken to serve a Registrant when notice had been posted to his registered address, the Panel should bear in mind that the Registrant was under an obligation to maintain an up-to-date address on the regulator’s register.
9. In these circumstances, the Panel was satisfied that the HCPC had taken all reasonable steps to serve notice of the proceedings on the Registrant by posting a notice to the address held by the HCPC on the appropriate register.
Proceeding in Absence:
10. The Panel then considered whether it should exercise its discretion to proceed in the Registrant's absence.
11. The Panel had regard to the guidance given in the Practice Note, “Proceeding in the absence of the Registrant" dated 22 March 2017 and to the decision of the House of Lords in R v Jones [2002] UKHL 5.  It bore in mind that the discretion to proceed in the absence of the Registrant should be exercised with great care.
12. The Panel looked at the nature and circumstances of the Registrant's absence and in particular whether his absence was deliberate and voluntary so that it amounted to a waiver of his right to appear. It had particular regard to his email dated 10 January to which the Panel referred above.
13. The Panel also considered whether an adjournment was likely to result in the Registrant attending at a later date, the likely length of any such adjournment and whether there was any indication that the Registrant wished to be represented. The Panel was satisfied that there is no evidence that an adjournment would secure the Registrant’s attendance or that he would wish to attend or be represented at any hearing. On the contrary, the evidence indicated that the Registrant had consented to the hearing proceeding in his absence.
14. The Panel accepted that there is inevitably a risk of prejudice to a registrant who does not attend, albeit that, in this case, the prejudice would be lessened by the Panel having a copy of the Registrant’s written representations in the emails referred to above.
15. In any event, the Panel balanced the Registrant’s interest against the public interest in allowing the HCPC to fulfil its duty to protect the public.  The Panel bore in mind the guidance given by the Court of Appeal in Adeogba: that it should adjourn if there were good reason, but other wise it should proceed with the hearing.
16. In this case the Panel must hear a mandatory review of an order that will shortly expire and there is a clear public interest in the review being dealt with expeditiously.
17. In all the circumstances, the Panel was satisfied that it should exercise its discretion to proceed in the absence of the Registrant.
Application to hear part of the evidence in Private:
18. Ms Bragg told the Panel that some parts of the evidence may touch upon the Registrant’s health.  She applied that as and when such evidence was identified it should be heard in private to protect the privacy of the Registrant.
19. The Panel heard the advice of the Legal Assessor, which it accepted, and decided to hear those parts of the evidence or submission relating to the Registrant’s health in private to protect his privacy.
Background:
20. The Registrant was employed by the North Devon Health Care Trust as an Occupational Therapist from 2000 until 2013. The Registrant was initially based in the Barnstaple Rehabilitation Team and was transferred in October 2008 to the Bideford Complex Review Team as a Band 7 Advanced Practitioner. In March 2009, the Trust's Capability Procedure was initiated due to concerns in relation to the Registrant's managerial skills and his supervision of members of staff. On 9 August 2010 the Registrant was issued with a final written warning and was redeployed to work as a Band 6 Specialist Occupational Therapist in the medicine team at the North Devon District Hospital.
21. Between August 2011 and November 2011, concerns were raised by the Registrant's team manager in relation to his clinical decision making. On 9 November 2011, a meeting was held with the Registrant to discuss the concerns and to inform him that the Trust would again be initiating a capability process. On 18 November 2011 the Registrant commenced a four-month period of long term sickness and returned to work on 19 March 2012, whereupon performance objectives were put in place for him. The Registrant failed to meet the performance objectives set. A capability review meeting was held on 23 April 2012 and on 8 May 2012, the Registrant commenced another long term sickness leave period for approximately nine months.
22. On 6 December 2012 a meeting was held with the Registrant to discuss his return to work and it was agreed that he would undertake a twelve-week redeployment placement as an Occupational Therapist (Band 5) in the Orthopaedic Team at the North Devon District Hospital. The Registrant returned to work, initially on a part time basis on 28 January 2013. A number of objectives were put in place which the Registrant was informed by his new team manager, should be met within two months.
23. On 8 March 2013, the Registrant, having returned to work on a full time basis on that day, suffered a medical episode and was signed off sick. On 23 March 2013, Occupational Therapy advised that the Registrant be re-deployed to another area. On 15 April 2013 the Registrant commenced a new role as a Band 2 Medical Laboratory Assistant in the Pathology Department. In May 2013, the Registrant's manager reported that he was unable to sign off the Registrant's competences for the Band 2 Laboratory Assistant role.
24. Following a further meeting on 10 May 2013, the Registrant subsequently completed an application for retirement on ill-health grounds which was accepted. The referral to the HCPC was made by the North Devon Health Care NHS Trust on 28 June 2013.
25. The Registrant’s case was heard by a fitness to practise panel between 25 and 27 July 2016 (the 2016 Panel).  The 2016 Panel found the Registrant’s fitness to practise impaired by reason of both misconduct and lack of competence.
26. When finding the Registrants fitness to practise impaired the Panel made the following observations:
a) The Registrant had been set performance targets which he repeatedly failed to achieve over a period of years.
b) the Registrant displayed limited insight both as to how his misconduct and lack of competence arose and also how to avoid it ever being repeated. Apart from providing testimonial evidence to the effect that he no longer suffers from certain medical conditions, the Registrant presented no evidence that he has taken any positive steps to improve his knowledge and his practice.
c) the Registrant's misconduct and lack of competence was possibly remediable if sufficient adjustments were put in place, remediation would be very difficult, given that the Registrant was unable to perform adequately as a Band 7, Band 6 or Band 5 Occupational Therapist or even as a Band 2 Laboratory Assistant.
d) the Registrant has not practised as an Occupational Therapist for almost three and a half years and has taken no steps to keep his practice up to date other than to read the Journal of Occupational Therapy and look at "the website".
e) there remained a real risk of repetition such that Patients could be put at unwarranted risk of harm and that the reputation of the profession could be damaged by the Registrant in the future.
27. The Panel imposed a conditions of practice order for 18 months, in the following terms:
(1) You must confine your practice as an Occupational Therapist to the grade which equates to a newly qualified Occupational Therapist;
(2) You must place yourself and remain under the supervision of a supervisor of Band 6 or above working at the same location, who is registered with the HCPC as an Occupational Therapist and supply details of your supervisor to the HCPC within 28 days of commencement of any employment as an Occupational Therapist.
(3) You must meet with your Supervisor at least monthly and follow their advice and recommendations.
(4) You must work with your Supervisor to formulate a Personal Development Plan designed to address the deficiencies in your practice specifically; working autonomously, developing appropriate SMART goals and treatment plans, record keeping and report writing.
(5) Within three months of commencement of any employment as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.
(6) You must allow your Supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
(7) You must maintain a reflective profile detailing the outcomes of each Supervisory meeting and you must also prepare a reflective account which demonstrates how you have made adjustments to your practice to address your previous failings, both of which to be provided to the HCPC 14 days prior to any review of this order.
(8) You must promptly inform the HCPC when you start employment as an Occupational Therapist or take up any other or further employment as an Occupational Therapist.
(9) You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.
(10) 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 as an Occupational Therapist;
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).

At the Review Hearing today:
28. The Panel read the bundle of documents put before it by the HCPC and the bundle of emails sent to HCPC by the Registrant and heard the submissions made by Ms Bragg on behalf of the HCPC.
29. Ms Bragg reminded the Panel of its powers and the background to this case, which the Panel has set out below and incorporated in the decision.  She submitted that the Registrant’s fitness to practise remained impaired.  There was, she submitted, some evidence in the emails sent from the Registrant, that he had developed greater insight into his lack of competence and misconduct.  However, there was no evidence of remediation to allay the Panel’s concerns about the risk the Registrant presented to the public.
30. She drew the Panel’s attention to the emails submitted by the Registrant and submitted that extending the current Conditions of Practice Order would protect the public and give the HCPC sufficient time to consider the application for voluntary removal from the register, which the Registrant had made to the HCPC.
31. The Panel also had regard to the emails sent by the Registrant to the HCPC.  In those emails, the Registrant acknowledged his past failings and referred to “a downward spiral in which I was unable to fully function in my role as an Occupational Therapist”.  The Registrant also confirmed his intention to continue with voluntary removal from the Register.
32. The Panel heard the advice of the Legal Assessor.
Legal advice
33. The Legal Assessor advised the Panel’s first task was to determine if the Registrant’s fitness to practise was still impaired. Its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. He advised that in carrying out this assessment, the Panel must exercise its own independent judgment.
34. He advised that “the focus of a review is upon the current fitness of the registrant to resume practice, judged in the light of what he has, or has not, achieved since the date of the suspension. The panel should note the particular concerns articulated by the original panel and seek to discern what steps, if any, the registrant has taken to allay them during the period of his suspension.”
35. He also advised the Panel of the decision of Blake J in DR. ABRAHAEM - and -GENERAL MEDICAL COUNCIL 2008 EWHC 183
“In practical terms there is a persuasive burden on the practitioner at a review to demonstrate that he or she has fully acknowledged why past professional performance was deficient and through insight, application, education, supervision or other achievement sufficiently addressed the past impairments”
36. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired then the Panel should go on to consider what sanction, if any, should be imposed and that all the options under Article 30 of the 2001 Order could be exercised by the Panel. He also advised the Panel that it should bear in mind the principle of fairness and proportionality and to have regard to the Indicative Sanctions Policy document issued by the HCPC.


Decision:
37. The Panel bore in mind that its first task is to decide if the Registrant’s fitness to practise is currently impaired.  Only if it is, should it go on to consider what, if any, sanction should be imposed upon his registration.
38. The Panel had firmly in mind that the purpose of this hearing was to conduct a thorough review of the Registrant’s current fitness to practise, including an assessment of future risk, in the light of what he has achieved since the last hearing to allay the concerns identified by the previous panel.
39. In reaching its decision, the Panel has considered all the relevant material and had regard to the HCPC Practice Notes on Impairment and the Indicative Sanctions Policy.  The Panel accepted the advice of the Legal Assessor.
Impairment:
40. Having regard to all the matters set out above the Panel found that the Registrant had continued to develop insight into his failings.  However, he had not worked as an Occupational Therapist since 2013 and had not demonstrated significant remediation.
41. In particular he had not shown evidence of CPD, training, education or reflection which would demonstrate that he had remediated the concerns identified by the 2016 Panel.
42. In those circumstances the Panel was not satisfied that the risk of repetition had been sufficiently reduced for it to be safe to allow the Registrant to return to unrestricted practice.
43. The Panel also found that it would be failing in its duty to promote and maintain public confidence in the profession and proper standards of conduct for the profession if it did not make a finding of impairment.
Sanction:
44. Having found the Registrant’s fitness to practise is still impaired, the Panel went on to consider, what if any sanction to impose on the Registrant.
45. The Panel had regard to the submissions of Ms Bragg and the Indicative Sanctions Guidance.  It also bore in mind its duty to protect members of the public and the wider public interest of maintaining public confidence in the profession and upholding proper standards of conduct.
46. The nature of the misconduct was too serious to make no order or to consider mediation. The Panel considered whether to impose a Caution Order, but decided that it was inappropriate, because it would not place sufficient restriction on the Registrant’s practice to protect the public.
47. The Panel decided that an extension of the current Conditions of Practice Order was the proportionate and appropriate sanction at this stage. The terms of the order were necessary to provide protection to service users and they have done so successfully throughout the period of the order since 2016.
48. The panel decided that the correct period of extension was 6 months because this would give the Registrant and the HCPC sufficient time to explore the Registrant’s application for Voluntary Removal from the Register, while affording sufficient protection to the public during that process.
49. The Panel considered whether it was necessary to impose a Suspension Order.  The Panel decided it was not because the Conditions of Practice Order had successfully protected the public for 18 months and it would be unnecessarily punitive to suspend the Registrant while the HCPC considered his application for voluntary removal.

Order

The Registrar is directed to annotate the Register to show that, for a period of 6 months from the date that this Order comes into effect (“the Operative Date”), you, Mr Paul R Butler, must comply with the following conditions of practice:
1. You must confine your practice as an Occupational Therapist to the grade which equates to a newly qualified Occupational Therapist;
2. You must place yourself and remain under the supervision of a supervisor of Band 6 or above working at the same location, who is registered with the HCPC as an Occupational Therapist and supply details of your supervisor to the HCPC within 28 days of commencement of any employment as an Occupational Therapist.
3. You must meet with your Supervisor at least monthly and follow their advice and recommendations.
4. You must work with your Supervisor to formulate a Personal Development Plan designed to address the deficiencies in your practice specifically; working autonomously, developing appropriate SMART goals and treatment plans, record keeping and report writing.
5. Within three months of commencement of any employment as an Occupational Therapist you must forward a copy of your Personal Development Plan to the HCPC.
6. You must allow your Supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.
7. You must maintain a reflective profile detailing the outcomes of each Supervisory meeting and you must also prepare a reflective account which demonstrates how you have made adjustments to your practice to address your previous failings, both of which to be provided to the HCPC 14 days prior to any review of this order.
8. You must promptly inform the HCPC when you start employment as an Occupational Therapist or take up any other or further employment as an Occupational Therapist.
9. You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.
10. 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 as an Occupational Therapist;
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).

The order imposed today will apply from the expiry of the current order, namely 24 February 2018 date.

This order will be reviewed again before its expiry.

Notes

No notes available

Hearing History

History of Hearings for Paul R Butler

Date Panel Hearing type Outcomes / Status
08/06/2018 Conduct and Competence Committee Final Hearing Voluntary Removal agreed
17/01/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
25/07/2016 Conduct and Competence Committee Final Hearing Conditions of Practice
19/10/2015 Conduct and Competence Committee Final Hearing Adjourned