Miss Lois K Appleton

Preliminary matters:

1. The case for the Health and Care Professions Council (the “HCPC”) was presented by Mr Mark Millin, of Kingsley Napley. The Registrant was not present or represented. In her pro-forma response form dated 15 December 2017, the Registrant denied the facts of the allegation.

2. The Panel was satisfied that notice of today’s hearing had been properly served on the Registrant at her home address as it appears on the HCPC Register in terms of rules 3 and 6 of the Conduct and Competence Committee Procedure Rules. Mr Millin thereafter made an application to proceed in the Registrant’s absence in terms of rule 11 of the Conduct and Competence Procedure Rules 2003. Mr Millin advised that while the Registrant had a right to be present and represented at the hearing, that right could be waived. Mr Millin referred the Panel to the Registrant’s pro - forma response form in which she indicated that she would not be attending the hearing. Mr Millin stated that the Registrant had therefore waived her right to attend. Mr Millin also advised that there were three witnesses due to give evidence at the hearing and that in all the circumstances, it was in the public interest to proceed in the Registrant’s absence.

3. The Panel considered Mr Millin’s application to proceed in the Registrant’s absence, together with the advice of the Legal Assessor. The Panel is aware that the discretion to proceed in absence is one which should be exercised with the utmost care and caution. The Panel has had sight of the Registrant’s pro-forma response form which was signed on 15 December 2017, in which she confirms that she will not be attending the hearing. There has been no further contact from the Registrant. The Registrant has not asked for an adjournment of today’s hearing. The Panel has no reason to believe that she would attend at a future date if the matter were adjourned. The Panel is aware that there are three witnesses giving evidence at this hearing and that the allegations date back to 2016. The Panel has therefore concluded that in all of these circumstances it is in the public interest to proceed in the Registrant’s absence.

4. The Panel next considered Mr Millin‘s application to amend to the allegation by adding the words “until prompted to do so” to the stem of particular 5 after the words “Patient I”; by deleting “29” and substituting “28” in particular 6, by inserting the words “(Patient N) after the word “patient” in particular 6 and deleting the words “and did not” in particular 6; re-numbering particulars 6a), b), c) and d) as particulars 7a), b), c) and d); deleting the stem of particular 7 and substituting the words “On or around 29 April 2016, you attended an unknown patient (Patient M) and did not:”; inserting a new particular 8 as follows “On or around 29 April 2016, you attend Patient C and did not identify that intermittent positive-pressure breathing (IPPB) was contraindicated due to a very low blood pressure and pulmonary fibrosis”; re-numbering particulars 7 - 13 as particulars 9 – 15 and deleting the word “May” in the stem of the re-numbered particular 10 and substituting the word “April”.

5. Mr Millin stated that the amendments serve to clarify the HCPC’s case in accordance with the evidence and that notice of the amendment had been served on the Registrant on 6 November 2017 and no response had been received.

6. The Panel considered Mr Millin’s submissions and the advice of the Legal Assessor. The Panel agreed to grant the application as it was satisfied that the amendments better reflected the evidence before the Panel and did not cause any injustice to the Registrant.

Background

7. The Registrant is a registered Physiotherapist who commenced employment as a Band 6 within the Acute Admissions and Private Patients Team at St Richards Hospital NHS Foundation Trust in August 2015, having previously been employed as a Bank Band 5 Physiotherapist and then appointed to a permanent Band 5 at another NHS Trust. In around October 2015, SW, a Band 7 Physiotherapist and Team Lead for Acute Admissions and Private Patients, began to raise concerns about the Registrant’s practice as she was requiring a high level of support with her clinical duties and was struggling to meet her additional commitments. Following these concerns, the informal stage of the Trust’s capability process was implemented from 13 November 2016. As part of this process, the Registrant spent four weeks working full-time in the respiratory team to improve her skills in this area. During this time she was supervised by IH. On 23 February 2016, a decision was taken to progress to the formal capability process. A Final Stage Capability hearing was held on 11 July 2016. As a result of patient safety concerns, toward the latter stage of the Trust capability process all of the Registrant’s clinical work was supervised by a Senior Physiotherapist. The incidents described in the allegations arose in the course of that supervised practice. 

Decision on Facts

8. The Panel heard evidence from three witnesses on behalf of the HCPC: SW, Team Lead Physiotherapist for Acute Admissions and Private Patients Physiotherapy; LO, Head of Physiotherapy, both of whom are employed at Western Sussex Hospitals NHS Trust and IH, a Highly Specialist Respiratory Physiotherapist now employed at Guy’s and St Thomas’ NHS Foundation Trust.

9. The Panel found SW to be a very credible and unbiased witness who was willing to admit when she could not answer a question. Her evidence was supported by documentary evidence in the form of patients’ case records and notes which she had made on the Registrant’s treatments of individual patients shortly after those treatments had taken place. The Panel found LO to be a reliable witness who assisted the Panel with evidence of the recruitment and capability process adopted by the Trust and the level of support offered to the Registrant. The Panel found IH to be a credible and reliable witness whose evidence was fair and unbiased.

Particulars 1a) - e)

10.  The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient F and notes on the Registrant’s treatment of Patient F compiled by SW, both of which supported her oral evidence. The Panel heard evidence that SW attended Patient F alongside the Registrant on 16 March 2016. SW gave clear evidence that the Registrant did not check the amount of oxygen and flow rate being delivered to Patient F in the course of her assessment; did not calculate a respiratory rate herself and relied on the doctor’s record of oxygen saturation, flow rate and respiratory rate. SW also gave evidence that the Registrant did not review Patient F’s blood results within the previous records and was unable to identify indicators of renal failure. The Panel is satisfied on the oral evidence of SW as supported by the case records and notes on the Registrant’s treatment, that the facts of particulars 1a) to e) are proved to the requisite standard.

Particular 2

11. The Panel heard evidence from IH and SW in support of this particular. The Panel heard evidence that IH discussed Patient L’s treatment plan with the Registrant as SW was absent. The Panel also had sight of the relevant case records for Patient L and notes on the Registrant’s treatment of Patient F compiled by SW after a detailed discussion with IH, both of which supported their oral evidence. IH gave evidence that in the course of their discussion, the Registrant was unable to identify whether the troponin level was positive or negative. IH gave evidence that the Trust had changed the troponin test which meant that different values signified a positive or negative result. However both witnesses were clear that that this had been highlighted to staff members on more than one occasion. The Panel is satisfied on the oral evidence of IH and SW, as supported by the case records and notes on the Registrant’s treatment, that the facts of particular 2 are proved to the requisite standard.

Particular 3

12. The Panel heard evidence from SW in support of this particular. The Panel also had sight of the relevant case records for Patient J and notes on the Registrant’s treatment of Patient J compiled by SW, both of which supported her oral evidence. The Panel heard evidence that SW attended Patient J alongside the Registrant on 8 April 2016. She gave evidence that she asked the Registrant to compare normal troponin test results with Patient J’s test results and that the Registrant admitted that she did not know the value for normal troponin levels. The Panel is satisfied on the oral evidence of SW as supported by the case records and notes on the Registrant’s treatment, that the facts of particular 3 are proved to the requisite standard.

Particulars 4a) - c)

13. The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient A and notes on the Registrant’s treatment of Patient A compiled by SW, both of which supported her oral evidence. The Panel heard evidence from SW that, prior to the Registrant’s session with Patient A, she asked the Registrant about Patient A’s condition and what she planned to do during the session. SW gave evidence that the Registrant indicated that she planned to mobilise the patient and transfer her out of bed. SW’s evidence was that from the Registrant’s proposed plan, it appeared that she had not taken account of the patient’s blood results and had not extracted the troponin test result.

14. In addition, SW gave evidence that the Registrant did not appear to notice that the patient had suffered an extensive fracture of the humeral-head as indicated on an X-ray within the patient notes. She explained that the Registrant’s advice to mobilise the patient would have been a safety risk in the circumstances. Her evidence was that she directed the Registrant towards the correct action which was to take no action and not see the patient. The Panel is satisfied on the oral evidence of SW, as supported by the case records and notes on the Registrant’s treatment, that the facts of particular 4 are proved to the requisite standard.

Particulars 5a) - e)

15. The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient I and notes on the Registrant’s treatment of Patient I compiled by SW detailing her concerns, both of which supported her oral evidence. The Panel heard evidence that SW attended Patient I alongside the Registrant on 27 April 2016. She gave evidence that the Registrant had inadequately prepared the area for the assessment, that she had not identified the need to provide the patient with slipper socks to improve his stability and safety when mobilising; did not initiate sitting the patient out of bed; did not clear clutter from the chair she planned to use and did not check the height of the chair. The evidence of SW was that she had to prompt the Registrant to carry out each of these tasks and that she had to intervene as it became a safety risk. The Panel is satisfied on the oral evidence of SW as supported by the case records and notes on the Registrant’s treatment, that the facts of particular 5 are proved to the requisite standard.

Particular 6

16. The Panel heard evidence from SW in support of this particular. SW gave evidence that on 27 April 2016 she discussed the Registrant’s progress with her and made it clear to her that she would need to be assisted by a qualified physiotherapist with any work in relation to new patients. She stated that she was not working on 28 April 2016 and when she returned to work on 29 April 2016, she noticed in the daily log book that the Registrant had attended a new patient with a technician and without a qualified senior present in the room. The Panel also had sight of the Ward Book from 28 April which supported SW evidence. The Panel is satisfied on the oral evidence of SW, as supported by the documentary evidence, that the facts of particular 6 are proved to the requisite standard.

Particulars 7a) - d)

17. The Panel heard evidence from SW in support of these particulars. She gave evidence that on 29 April 2016 the Registrant’s assessment of patient M was incomplete in that she did not calculate the patient’s respiratory rate, did not enquire about the patient’s normal respiratory function or normal sputum production. She also gave evidence that the Registrant failed to identify that the patient had a Glyceryl Trinitrate infusion pump attached and running and was not therefore able to tailor the treatment to the patient’s specific needs. The Panel is satisfied on the oral evidence of SW that the facts of particulars 7a) to d) have been proved to the requisite standard. 

Particular 8

18. The Panel heard evidence from SW in support of this particular. The Panel also had sight of the relevant case records for Patient C and notes on the Registrant’s treatment of Patient C compiled by SW detailing her concerns, both of which supported her oral evidence. SW gave evidence that she attended Patient C alongside the Registrant on 29 April 2016. She gave evidence that during this session the Registrant did not identify that intermittent positive pressure breathing (IPPB) was contraindicated due to the patient having very low blood pressure, and extensive pulmonary fibrosis, despite having received significant teaching, exposure and supervision regarding the use of IPPB. The Panel is satisfied on the oral evidence of SW, as supported by the documentary evidence, that the facts of particular 8 are proved to the requisite standard.

Particulars 9a) - f)

19. The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient H and notes on the Registrant’s treatment of Patient H compiled by SW detailing her concerns, both of which supported her oral evidence. SW gave evidence that she attended Patient H alongside the Registrant on 6 May 2016. She gave evidence that during this session, while conducting a mobility assessment, the Registrant did not enquire if the patient had any falls history, did not obtain a handover from the nursing team and did not check the patient’s mobility aid which was worn and unsafe for use. She also gave evidence that the Registrant also failed to assess the patient’s Time Unsupported Steady Stand (TUSS) before mobilising the patient and did not establish if the patient needed support whilst mobilising. In addition SW gave evidence that the patient’s oxygen probe alarm had sounded and that the Registrant did not acknowledge this or take any action in response.  The Panel is satisfied on the oral evidence of SW, as supported by the documentary evidence, that the facts of particular 9 are proved to the requisite standard.

Particulars 10a) - c)

20. The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient E and notes on the Registrant’s treatment of Patient E compiled by SW detailing her concerns, both of which supported her oral evidence. SW gave evidence that she attended Patient E alongside the Registrant on 8 April 2016. She gave evidence that the Registrant had taken the patient’s observations and had not noticed that the patient’s oxygen was not switched on. She also gave evidence that the Registrant did not assess the patient’s respiratory rate, oxygen saturation rate or the fraction of inspired oxygen and when discussing the case with the Registrant later, the Registrant admitted that she did not know what the patient’s oxygen levels should be. The Panel is satisfied on the oral evidence of SW, as supported by the documentary evidence, that the facts of particular 10 are proved to the requisite standard.

Particulars 11a) - b)

21. The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient G and notes on the Registrant’s treatment of Patient G compiled by SW detailing her concerns, both of which supported her oral evidence. SW gave evidence that she attended Patient E alongside the Registrant on 9 May 2016. She gave evidence that the Registrant did not conduct a formal handover of her assessment with the nursing team, despite having told the Registrant that she needed to do so, to ensure patient safety. She also gave evidence that the Registrant did not document the safety concerns discussed during the assessment in the patient’s physiotherapy notes. The Panel is satisfied on the oral evidence of SW, as supported by the documentary evidence, that the facts of particular 11 are proved to the requisite standard.   

Particulars 12a) - b)

22. The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient B and notes on the Registrant’s treatment of Patient B compiled by SW detailing her concerns, both of which supported her oral evidence. SW gave evidence that she attended Patient B alongside the Registrant on 13 May 2016. She gave evidence that the Registrant appeared to attempt to move the patient without ensuring there was additional equipment to support this and that it was clear that the patient would need significant support when being transferred out of bed. She also gave evidence that after the Registrant’s unsuccessful attempt at standing the patient up, she had to prompt her and tell her that a stand aid or a rota stand was required to move the patient safely.

23.  In addition she gave evidence that having asked the Registrant if she was confident to use the equipment, the Registrant had confirmed that she was happy to use it, was up to date with her training and comfortable with her knowledge of how it worked. She gave evidence that the Registrant then tried to initiate the stand aid and applied the straps to the patient incorrectly, thereby causing a safety risk and that at that point she had to intervene and stop her from continuing with the stand transfer. The Panel is satisfied on the oral evidence of SW as supported by the documentary evidence, that the facts of particular 12 are proved to the requisite standard.

Particulars 13a) - c)

24. The Panel heard evidence from SW in support of these particulars. The Panel also had sight of the relevant case records for Patient D and notes on the Registrant’s treatment of Patient D compiled by SW detailing her concerns, both of which supported her oral evidence. SW gave evidence that she attended Patient D alongside the Registrant on 27 May 2016. She gave evidence that the Registrant completed her A to E assessment of the patient but did not calculate the patient’s respiratory rate, oxygen saturation or associated oxygen delivery, despite having been given extensive teaching on the core elements of a respiratory assessment. The Panel is satisfied on the oral evidence of SW, as supported by the documentary evidence, that the facts of particular 13 are proved to the requisite standard.

Decision on Grounds

25. The Panel next considered whether the Registrant’s actions in particulars 1 to 13 amount to a lack of competence. The Panel is aware that this is a matter for its professional judgement. In reaching its decision, the Panel has considered the submissions of Mr Millin on behalf of the HCPC and has had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired. The Panel has also accepted the advice of the Legal Assessor.

26. The Panel considered the definition of lack of competence or professional deficiency as set out in the case of Holton v GMC [2006] EWHC 2960 that the standard to be applied was that applicable to the post to which the Registrant has been appointed and the work she was carrying out, and that competence should be measured in the context of a reasonable sample of her work.

27. The Panel has found that the Registrant has demonstrated wide ranging failings in basic skills which were repeated over an extended period of time. These included failing to conduct appropriate and safe assessments and mobilisation of patients, a lack of awareness of the safe range of test results and attending two patient’s without a qualified senior physiotherapist, having been instructed not to do so.

28. Despite being provided with considerable support and supervision by the Trust, the Registrant did not demonstrate any consistent improvement in these areas. The Panel has heard evidence from three witnesses that the Registrant’s performance did not meet the required standard of a Band 5 physiotherapist, albeit she was employed in a Band 6 post. The Registrant’s conduct found proved also breached the following standards of the HCPC’s Standards of Proficiency for Physiotherapists:

Registrant physiotherapists must:

Standard 1 - be able to practise safely and effectively within their scope of practice.
Standard 2.1 - understand the need to act in the best interests of service users at all times.
Standard 2.7 – be able to exercise a professional duty of care.
Standard 3 – be able to maintain fitness to practise.
Standard 3.1 – understand the need to maintain high standards of … professional conduct.
Standard 3.3 – understand both the need to keep skills and knowledge up to date and the importance of career-long learning.
Standard 4 – be able to practise as an autonomous professional, exercising their own professional judgement.
Standard 4.1 be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem.
Standard 4.2 - be able to make reasoned decisions to initiate, continue, modify or cease techniques or procedures, and record the decisions and reasoning appropriately.
Standard 4.3 - be able to initiate resolution of problems and be able to exercise personal initiative.
Standard 4.4 - recognise that they are personally responsible for and must be able to justify their decisions.
Standard 4.5 - be able to make and receive appropriate referrals.
Standard 4.6 - understand the importance of participation in training, supervision and mentoring.
Standard 11 – be able to reflect on and review practice.
Standard 11.1 - understand the value of reflection on practice and the need to record the outcome of such reflection.
Standard 12 - be able to assure the quality of their practice.
Standard 12.8 - be able to evaluate intervention plans to ensure that they meet the physiotherapy needs of service users, informed by changes in circumstances and health status.

29. Taking all of these matters into account, the Panel is satisfied that the Registrant’s conduct in particulars 1 to 13 is serious and amounts to a lack of competence.

Decision on Impairment

30. The Panel next considered whether the Registrant’s current fitness to practise is impaired by that lack of competence. In reaching its decision the Panel has considered both the personal component and the public component. In addition, the Panel has considered the submissions of Mr Millin on behalf of the HCPC and has also had regard to the HCPTS Practice Note on Finding Fitness to Practice is Impaired. The Panel has also accepted the advice of the Legal Assessor.

31. In terms of the personal component, the Panel has heard evidence that throughout the capability process, while the Registrant engaged fully with that process, she did not appear to have any insight into her failings or understand the seriousness of them with regard to patient safety. In addition, the Panel has seen no evidence of remediation. The Panel is of the view that the Registrant has repeatedly demonstrated wide-ranging failings in basic physiotherapy skills relevant to her role.  In the absence of evidence of remediation, the Panel has concluded that there is a real risk of repetition.

32. The Panel has also considered the critically important public policy issues which include the collective need to maintain public confidence in the profession and in the regulatory process, the protection of service users and the declaring and upholding of proper standards of behaviour.  The Panel’s findings in respect of the allegation found proved, amounting to lack of competence, raises concerns that potentially placed patients at serious risk of harm. While there was no actual patient harm caused, the Panel has heard evidence that on a number of occasions, there was clearly potential for harm, such that the supervising physiotherapist had to intervene. The Panel is therefore concerned that there is an issue of public protection.

33. The Panel is also of the view that the Registrant’s lack of competence would impact on public confidence in the profession. The Panel has found that the Registrant demonstrated wide ranging and basic failings in her physiotherapy skills which did not improve over time despite being given an unprecedented level of support and supervision by the Trust. The Panel has concluded that there is a serious risk of an adverse impact on public confidence in the profession and in the regulatory process, if a finding of impairment were not made in these circumstances.

34. The Panel therefore finds that the Registrant’s current fitness to practise is impaired by her lack of competence in terms of both the personal component and the wider public component and the allegation is well founded.

Decision on Sanction

35. The Panel has heard submissions from Mr Millin on behalf of the HCPC on the issue of sanction. The Panel has also considered the advice of the Legal Assessor and had regard to the HCPTS’s Indicative Sanctions Policy.

36. The Panel is aware that the function of fitness to practise panels is not to be punitive, and that the primary function of any sanction is to address public safety from the perspective of the risk the Registrant may pose to those using or needing her services in the future and determine what degree of public protection is required. The Panel must also give appropriate weight to the wider public interest which includes the deterrent effect on other Registrants, the reputation of the profession and public confidence in the regulatory process.

37. The Panel considered the following mitigating factors:-

• the Registrant has had no previous findings made against her,
• no actual harm was caused to any patient.
38. The Panel also had regard to the following aggravating factors:-
• the Registrant’s failings in core skills  were repeated over an extended period of time and did not show any consistent improvement despite extensive support;
• her actions had the potential to cause harm to particularly vulnerable patients;
• there is no evidence of  remediation, remorse or insight;
• the Panel has identified a risk of repetition.

39. The Panel has considered the sanctions available to it in ascending order of severity. The Panel considered that to take no action or to impose a Caution Order would not be appropriate, given that the lapse was not isolated or minor in nature, the Panel has identified wide ranging failings and has identified a risk of repetition. In addition the Panel is of the view that neither option would be sufficient to address the wider public interest considerations.

40. The Panel next considered a Conditions of Practice Order. While the Panel is of the view that, in principle, the matters found proved are capable of remediation, in the absence of the Registrant and of any information on her current circumstances, the Panel is not aware if the Registrant is committed to resolving her issues and working and continuing in her profession.  In these circumstances, the Panel could not formulate conditions which would be realistic, workable and verifiable, particularly where there has been a pattern of repeated failings in core skills and no evidence of insight. The Panel considers that a Conditions of Practice Order would not be an appropriate or proportionate sanction in this case as it would not address the public interest considerations nor would it protect the public.

41. The Panel next considered a Suspension Order.  In terms of the Indicative Sanctions Guidance, a Suspension Order may be appropriate where the Panel considers that a caution or conditions of practice would provide insufficient public protection. The Panel is of the view that the Registrant’s failings are wide ranging and has identified a risk of repetition across the range of her failings.  In these circumstances, the Panel is of the view that a Suspension Order would be an appropriate and proportionate sanction which would both address issues of public protection and the wider public interest considerations. The Panel considers that a period of twelve months would be appropriate, given the nature of the repeated failings.

42. This Order will be reviewed prior to its expiry. It may assist a future Panel if the Registrant were to engage with the HCPC and attend a future hearing. In addition, a future Panel may also  be assisted with the following:-

• Evidence of relevant continuing education and professional development;
• Evidence of relevant work experience and references from any employers;
• Evidence that the Registrant wishes to continue to work as a physiotherapist.

That the Registrar is directed to suspend the registration of Miss Lois K Appleton for a period of 12 months from the date this order comes into effect.

This order will be reviewed again before its expiry on 22 August 2019.

The Panel considered Mr Millin’s application for an 18 months Interim Suspension Order on the grounds it was necessary for public protection, and otherwise in the public interest. The Panel accepted the advice of the Legal Assessor and had regard to the Practice Note on Interim Orders. The Panel was satisfied that the Registrant had been put on notice of such an application as required by Article 31(15) of the Health and Social Work Professions Order 2001. Given the Panel’s findings and the risk of repetition, the Panel considered that such an order is necessary for the protection for the public and is otherwise in the public interest. The Panel agrees to grant the Order for a period of 18 months to allow for any appeal to be determined.

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

History of Hearings for Miss Lois K Appleton