Mrs Margaret Ndini-Smith

Profession: Physiotherapist

Registration Number: PH52577

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 18/06/2018 End: 11:30 18/06/2018

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

 

During the course of your employment as a Physiotherapist with Kent Community Health NHS Foundation Trust:

 

1. In the case of Service User A, you;

 

 

a) did not adequately complete SMART goals and/or an appropriate aim on Service User A’s programmes;

 

b) gave Service User A inappropriate and/or unsafe exercises for Service User A’s condition.

 

2. In the case of Service User B, you;

 

 

a) did not adequately complete Service User B’s programme;

 

b) did not produce a report for the tribunal in a timely way as requested; and/or

 

c) did not complete the report for the Tribunal in adequate detail.

 

 

 

3. In the case of Service User C, you:

 

a) did not complete the baseline assessment pre operatively;

 

b) did not complete a post-surgery report and/or assessment in a timely manner;

 

c) did not complete an adequate programme for Service User C.

 

 

 

4. In the case of Service User D, you;

 

a) did not adequately clarify the presenting difficulty on the case notes;

 

b) did not adequately summarise and/or conclude the outcome of the assessment on the case notes;

 

 

5. In the cases of Service User E and Service User F, you;

 

a) did not adequately record background history in the case report;

 

b) did not record an adequate analysis and/or clinical reasoning in the case report;

 

c) did not adequately record advice and/or strategies to assist the Children in the case report.

 

 

 

6. In the case of Service User G, you;

 

a) did not adequately clarify the reasons for the referral to the physiotherapy department in the case report;

 

b) did not adequately record the motor developmental milestones in the case report;

 

c) did not adequately provide evidence to support your clinical reasoning in the case report.

 

 

 

7. In the case of Service User H, you;

 

a) did not provide adequate evidence to support your clinical reasoning in the case report;

 

b) did not make it clear what specialist physiotherapy intervention was being recommended in the case report;

 

c) did not adequately clarify what was meant by 'walker's group referral' in the case report;

 

d) did not adequately identify Service User H’s next treatment steps in their support programme.

 

 

 

8. In the case of Service User I, you;

 

a) not proved

 

b) commented on Service User I’s cognitive ability which was outside of your professional remit;

 

c) did not adequately interpret and/or clarify the joint measurements in the case report.

 

 

 

9. In the case of Service User J, you;

 

a) did not record who Service User J had been referred by in the case report;

 

b) did not record why Service User J had been referred to the Physiotherapy department in the case report;

 

c) not proved

 

 

 

10. In the case of Service User K, you;

 

a) did not provide an adequate summary of Service User K’s clinical difficulty and/or need in the case report;

 

b) did not complete the case report.

 

 

 

11. In the case of Service User L, you;

 

a) did not adequately provide a full analysis in the case report;

 

b) did not clearly set out the next treatment steps in the case report;

 

c) did not record a follow up appointment in the case report.

 

 

 

12. In the case of Service User M, you stated in Service User M’s report that the service user scored well for the activity levels of the Chailey assessment which was incorrect.

 

 

 

13. The matters set out in paragraphs 1 - 12 constitute lack of competence.

 

 

 

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

Finding

Preliminary Matters

Service

1. The Panel had sight of the notice of hearing, which had been sent to the Registrant on 18 May 2018 at her registered address. The Panel determined that service had been complied with in accordance with the requirements of the  Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (“the Rules”).

Proceeding in absence


2. The Panel accepted the advice of the Legal Assessor, who took the Panel to Rule 11 and to the guidance given in the cases of Jones (2003) 1 AC 1 and Tait v The Royal College of Veterinary Surgeons [2003] UKPC 34 and GMC  v Adeogba [2016] EWCA Civ 162. 

3. The Panel was provided with an email dated 15 June 2018 sent by the Registrant’s legal representative to the HCPC, saying:

“No disrespect is intended to the Panel but the Registrant is not attending the hearing and will not be represented…the Registrant does not request a…adjournment of the hearing and is content for the hearing to proceed in her absence”

4. The Panel concluded from this that the Registrant had absented herself voluntarily and did not want an adjournment of the hearing today. The Panel concluded that it was in the public interest for the matter to be heard expeditiously and decided to proceed in the absence of the Registrant.

Background

5. The Registrant was employed by East Sussex Hospital Trust in 2001 as a Band 7, and then Band 6, Clinical Specialist Physiotherapist working with babies and young children. Concerns about the Registrant’s practice were raised in August 2013 as a result of which the Registrant was subject to informal and then formal capability procedures, including a Performance Improvement Plan (PIP), between 2013 and 2015. The Registrant was referred to the HCPC by the Trust.

6. The Registrant admitted the allegation, save for particulars 1(b), 8(b) and 9(c). All particulars were found proved by the substantive panel save for 8(a) and 9(c), which were found not proved. The matters found proved related to the Registrant’s failure to adequately complete records and documentation in relation to vulnerable service users, together with a lack of adequate reasoning, analysis, clarification and timely completion of important documentation that was relied upon by fellow health professionals, colleagues, parents and tribunals.

7. In concluding that the matters found proved amounted to lack of competence  the substantive panel said:

“The Registrant failed to adequately complete important aspects of documentation in respect of vulnerable Service Users. The Registrant admits, and the Panel found proved, a lack of adequate reasoning, recording, analysis, clarification and timely completion of important documentation relied upon by fellow health professionals, colleagues, parents and tribunals. That documentation is essential for the safe and appropriate care of Service Users and the Registrant’s failures were serious and placed Service Users at potential risk of harm”.


8. In finding the Registrant’s fitness to practise to be impaired the substantive panel said:

“the Panel [who] accept that the Registrant is genuinely remorseful and has apologised for her actions. It is noted that the Registrant seemed to rely heavily upon verbal communication with colleague and Service Users, and tended to minimise the importance of written reports and documentation. Whilst the Registrant clearly grasped the importance of communication, the Panel has concerns that she did not appear to have fully developed insight into the significance for Service Users and her colleagues of failing to keep accurate written and electronic records and to provide adequate and timely written and electronic records, clinical analysis and reasoning. For example, she said that most parents simply folded up her reports and put them in their pockets without reading them. The Registrant did not appear to fully appreciate the seriousness of, and risks presented by, her actions. The Registrant has not taken action to remedy her particular failings and there was a lack of evidence of any remediation of those failings.

The Panel found that the lack of competence could be remedied by the Registrant provided that she fully and properly reflects on her actions and addresses the particular failings admitted and found proved in respect of her practice. She has not done so. The Panel finds from the Registrant’s evidence that she has actively simply taken steps to avoid similar professional roles. In all the circumstances, the Panel determined that the Registrant continues to present a real risk of repetition of the failures found proved, placing Service Users at unwarranted risk of harm in the future.

As to the wider public interest, the Panel is mindful of the need to protect Service Users and the reputation of, and confidence in, the profession and the regulator. The Registrant’s failings are serious and the Panel is not satisfied that the Registrant will not repeat them. In the absence of fully developed insight and sufficient evidence of remediation, the Panel is satisfied that on both the personal and public components of impairment, the Registrant is currently impaired”.


9. In reaching its decision on sanction the substantive panel said:

“The mitigating factors are the fact that no Service Users were in fact harmed. The Registrant recognised the problems in her practice when drawn to her attention and acknowledged that the concerns engaged questions of professional standards. The Registrant has expressed genuine remorse. She has developed partial insight into the matters that have brought her to this hearing. Her failings are remediable. She has been working in a Band 6 Physiotherapy role and has produced testimonials and evidence from colleagues who spoke well of her practice since leaving the Trust.

The aggravating features are that the Panel has found the Registrant’s fitness to practise is impaired on both personal and the public grounds. The Registrant’s failings placed Service Users at risk of harm, particularly Service User A. The Registrant has not taken action or shown any particular evidence of remedying her failings. She has still not developed full and mature insight into her failings. There is still a real risk of repetition of the failures found proved.

In deciding what sanction, if any, to impose, the Panel has reminded itself that the purpose of sanctions is not to be punitive but to protect service users and the public interest, although a sanction may have a punitive effect. The Panel has taken into account the principle of proportionality, balancing the interests of the public with those of the Registrant.

The Panel has concluded that in the light of the seriousness of the allegation and the risk of harm to Service Users, a sanction is required. Further, the Panel does not consider that a Caution Order or Mediation is a proportionate or an appropriate response in this case.

The Panel did consider whether to impose a period of suspension. It carefully considered all of the evidence and its findings of fact. It considered all of the matters put forward by the Registrant and concluded that in these particular circumstances a sanction of suspension would not be rehabilitative and be merely punitive.

The Panel went on to consider a Conditions of Practice Order…

The Registrant has not fully addressed her failings and she has not been tested in a similar environment to that for which the Panel found her fitness to practise impaired. However, in this case no Service Users were in fact harmed. The Registrant has been working in Intermediate Care Units since leaving the Trust. There have been no complaints of her performance since then and colleagues have spoken well of her practice. She has engaged with this regulatory hearing throughout and the Panel considers that if a Conditions of Practice Order is imposed the Registrant can be trusted to comply with the conditions. She has said in evidence that she will not work in Children’s Services again but the Panel needs to be satisfied that before the Registrant can properly and fully practise unrestricted as a Registered Physiotherapist, she is capable of working in such an environment. The Panel has therefore determined to impose a Conditions of Practice Order for a period of 12 months in order that the Registrant can take the time to address and remedy her failings.”


10.  The substantive panel imposed the following Conditions of Practice:

1. Within six months of the Operative Date you must:


A. satisfactorily complete a one day face to face taught Medico Legal Report Writing Course recognised by the Chartered Society of Physiotherapy (CSP).
B. forward a copy of your certificate to the HCPC following completion of this course.


2. You must confine your professional practice to Adult Services.


3. You must place yourself and remain under the supervision of a Registered Physiotherapist workplace supervisor, registered by the HCPC and supply details of your supervisor to the HCPC within four weeks of the commencement of employment. You must attend upon that supervisor as required and follow their advice and recommendations.


4. You must promptly inform the HCPC if you take up any future employment.


5. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.


6. 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).


7.You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice;


• Report writing (to comply with CSP and employers organisations standards)
• Setting SMART goals.
• Analysis of presenting problems
• Clinical reasoning of your assessment to formulate a treatment plan.


8. Within three months of commencing employment you must forward a copy of your Personal Development Plan to the HCPC.


9. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.


10. 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.


11. You must submit to the HCPC within six months of commencing employment a reflective practice log showing at least one example of each of the following areas;


• Following completion of the medico-legal report writing course;
• Referral report to an external agency;
• Setting SMART objectives following a patient assessment;
• Clear clinical analysis and reasoning;
• Learning from and understanding of the issues raised in the; particulars of allegation upheld by the Panel.

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


13. Any condition requiring you to provide any information to the HCPC is to be met by you by sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management.

Decision

11. In the email dated 15 June 2018, the Registrant’s representative asked that the Conditions of Practice Order be continued for a further year. The HCPC did not oppose this request.

12. The Panel accepted the advice of the Legal Assessor, who reminded the Panel of the case of CHRE v (1) NMC, (2) Grant [2011] EWHC 927 and of relevant factors set out in the HCPC’s “Indicative Sanctions Policy”.

13. The Panel agreed with the conclusion reached by the substantive panel, that the Registrant’s fitness to practise had been impaired at the time of the substantive hearing. The Panel concluded that the Registrant’s fitness to practise remained impaired at today’s date. The Panel concluded that the Registrant’s failings were remediable but that since the last hearing she had not been working as a physiotherapist as she has been unable to return to a registered role due to several medical health issues. Neither had she provided any evidence of reflection.  The Registrant had failed to demonstrate remediation and in those circumstances the Panel could only conclude that there remains a likelihood of repetition of the Registrant’s failings if she is permitted to return to unrestricted practice. Accordingly, it was the judgment of the Panel that the Registrant remains a risk to the public if permitted to practise unrestricted.

14. The Panel also found that public confidence in the profession and the declaring of proper standards of conduct and performance demands a finding of impairment for the same reasons as had been identified by the substantive panel.

15. The Panel considered whether to make no order or to impose a Caution Order but concluded that this would not be sufficient to protect the public or satisfy the public interest.

16. The Panel concluded that it would be right to extend the current Conditions of Practise Order in order to give the Registrant a further opportunity to meet the conditions that had been imposed on her.  The Panel concluded that this would be the proportionate response in the circumstances.

17. The Panel decided that Condition 1 should be deleted because the Chartered Society of Physiotherapy does not have an approval process or any specific criteria with which to recognise courses. Furthermore, the Panel was of the view that the Registrant’s skills could be acquired by other methods, this will be managed by a new condition 8. The Panel made amendments to Conditions 7, 9 and 11.

18. The Panel decided to extend and vary the order by a further 12 months to give the Registrant time to remediate her lack of competence.

19. The Reviewing Panel would be assisted by the Registrant providing:

• Evidence of ongoing Continuous Professional Development;
• Feedback reports from her supervisor;
• Updated testimonials from work colleagues;
• A recent example of an assessment with SMART goals and a patient report to an external agency;

 

 

Order

ORDER: The Registrar is directed to extend the Conditions of Practice Order against the registration of Mrs Margaret E Ndini - Smith for a further period of 12 months on the expiry of the existing order.


1. You must confine your professional practice to Adult Services.


2. You must place yourself and remain under the supervision of a Registered Physiotherapist workplace supervisor, registered by the HCPC and supply details of your supervisor to the HCPC within four weeks of the commencement of employment. You must attend upon that supervisor as required and follow their advice and recommendations.


3. You must promptly inform the HCPC if you take up any future employment.


4. You must promptly inform the HCPC of any disciplinary proceedings taken against you by your employer.


5. 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).


6.You must work with your supervisor to formulate a Personal Development Plan designed to address the deficiencies in the following areas of your practice;


• Report writing (to comply with HCPC, CSP and employers’ organisational standards)
• Setting SMART goals.
• Analysis of presenting problems
• Clinical reasoning of your assessment to formulate a treatment plan.


7. Within three months of commencing employment you must forward a copy of your Personal Development Plan to the HCPC.


8. Any reports provided for external agencies must be checked and approved by your supervisor or nominated deputy prior to circulation.


9. You must meet with your supervisor on a monthly basis to consider your progress towards achieving the aims set out in your Personal Development Plan.


10. 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.


11. You must submit to the HCPC within six months of commencing employment as a Physiotherapist, a reflective practice log demonstrating your understanding of, learning from an implementation into practice of the issues raised in the particulars of allegation upheld by the Panel to include;
• Professional report writing;
• Setting SMART objectives following a patient assessment;
• Clear clinical analysis and reasoning.

12. You will be responsible for meeting any and all costs associated with complying with these conditions.
13. Any condition requiring you to provide any information to the HCPC is to be met by you by sending the information to the offices of the HCPC, marked for the attention of the Director of Fitness to Practise or Head of Case Management.

Notes

No notes available

Hearing History

History of Hearings for Mrs Margaret Ndini-Smith

Date Panel Hearing type Outcomes / Status
18/06/2018 Conduct and Competence Committee Review Hearing Conditions of Practice
19/06/2017 Conduct and Competence Committee Final Hearing Interim Conditions of Practice