Ms Elif Clarke

Profession: Practitioner psychologist

Registration Number: PYL26632

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 04/06/2018 End: 16:00 06/06/2018

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

During the course of your employment with Whittington Health as a Registered Practitioner Psychologist, you:

1. On 31 March 2016 undertook an assessment of Patient A and did not:

a) carry out a full risk assessment

b) identify a risk of suicide

c) refer Patient A to the crisis team

d) make a note of Patient A's recent suicide attempt

2. The matters set out in paragraph 1 constitute misconduct.

3. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters

Application to amend

1. Ms Shameli applied on behalf of the HCPC to amend the introductory part of the Allegation by adding “as” before the words “a Registered Practitioner Psychologist”. Ms Wheeler, on behalf of the Registrant, did not oppose the addition of that word by amendment. In the circumstances, the Panel determined to allow that amendment of the Allegation because there was no prejudice to the Registrant and it was a sensible amendment so as to make it read better.

The HCPC bundle

2. A further matter was raised. This was that the Panel had earlier been requested not to read the HCPC bundle because redactions were to be agreed. Due to an administrative error, the subsequently prepared bundles with agreed redactions had not been sent to the Panel. The Panel, in preparation for the hearing, had therefore read the initial bundle. The question arose about whether the Panel could put the subsequently redacted matters out of their minds. The Legal Assessor advised that each Panel member would have to decide whether the redacted material might influence his/her decision-making in respect of any of the stages in this hearing, namely: fact-finding; ground of misconduct; impairment of fitness to practise; or sanction. If any Panel member did conclude that he/she could not put the redacted matters out of mind and those matters might influence their decision-making, he/she should recuse himself/herself.

3. The Panel retired and deliberated and each Panel member determined that the redacted matters could be put out of mind. The hearing would proceed.

Background

1. The Registrant is a registered Practitioner Psychologist who qualified in 2000 and has worked in a number of roles within the NHS and private sector. The Registrant worked as a Band 7 Cognitive Behavioural Therapist within the Improving Access to Psychological Therapy (“IAPT”) team at the Whittington Health NHS Trust (“the Trust”) from 2010 to December 2016. From July 2014, the Registrant worked part-time, being 27 hours over three days a week.

2. The Registrant was on sick leave from July 2015 until 16 February 2016. She returned to work for two weeks and then took four weeks’ annual leave, returning to work on 29 March 2016. One of her nine assessments that took place that week was with Patient A on 31 March 2016.

Decision on Facts

HCPC evidence

3. EA is a registered Practitioner Psychologist and was the Team Leader in the IAPT service at the Trust in 2016. She gave her evidence over the telephone in accordance with an earlier case management decision. EA had been appointed Investigating Officer for the Trust in May 2016 regarding the Registrant’s assessment of Patient A. This followed Patient A attending A&E North Middlesex after having taken 14 sleeping tablets with vodka. EA confirmed the contents of her signed witness statement dated 8 November 2017, which detailed that investigation, and exhibited her Investigation Report dated 23 August 2016 and its supporting documents.

4. EA accepted in cross-examination that deliberate self-harm, a “cry for help”, and suicidal ideation are different; further, that to be a suicide attempt, there had to be an intention to kill oneself. Also, the history in the patient’s notes should be considered during an assessment.

5. NH is a registered Practitioner Psychologist and is a Senior Cognitive Behavioural Therapist at the IAPT service at the Trust. In 2016 she was the Registrant’s Line Manager and supervised the Registrant on a weekly basis. NH confirmed the contents of her signed witness statement dated 25 October 2017, that she had had a supervision session with the Registrant on 31 March 2016 after the Registrant had assessed Patient A.

6. NH said that she did not have a good recollection of the precise discussion in supervision with the Registrant about Patient A, but she did remember a discussion of paracetamol and vomiting as well as a previous attempt by Patient A to take her own life; this, combined with NH’s concern about Patient A’s impulsiveness, all led her to advise a referral to the Crisis Team on the ground of risk. A referral to the Crisis Team, which operated 24 hours a day, necessarily meant that Patient A was to be referred urgently, which the Registrant should have understood.

Submission of no case to answer on Particular 1(a)

7. Ms Wheeler made a submission of no case to answer in respect of Particular 1(a) on the basis of the second limb of the test as set out in the HCPTS Practice Note “‘Half-Time’ Submissions”. She submitted that the evidence of EA and NH was tenuous, weak and vague, so that the Panel, properly applying the burden and standard of proof, could not find this Particular proved. 8. Ms Shameli resisted the application and referred the Panel to the contents of the Registrant’s own statement given to the Trust Investigation regarding the issue of the contents of her screening of Patient A on 31 March 2016.

9. The Panel applied the second limb of the test set out in the HCPTS Practice Note and accepted the advice of the Legal Assessor, to consider only the HCPC evidence at this stage to determine the application. The Panel determined that, taking the HCPC evidence as a whole, that evidence was not so inherently weak that the Panel could not properly find Particular 1(a) proved on the balance of probabilities. The submission of no case to answer was therefore rejected.

Registrant’s evidence

10. The Registrant gave evidence to the Panel covering her professional history and the reasons for her period of sick leave from July 2015 to February 2016.

11. The Registrant explained her recollection of her appointment with Patient A on 31 March 2016. She had not met Patient A previously and had accessed the triage notes on the Trust’s PCMIS record system. Patient A described her personal circumstances and her self-harming by making superficial cuts when distressed. This was recorded by the Registrant in Patient A’s medical records, as was a record of Patient A’s account of taking a box of paracetamol and then vomiting. Although not recorded, that had occurred in the previous week and Patient A said that she had no immediate intention to take her own life. The Registrant therefore scored her “2” on Question 9 in the PHQ9 rating scale for depression. She said that she understood that there needed to be a score of “3” to complete a full risk assessment form on the Trust’s PCMIS system.

12. The Registrant said that she agreed with NH that Patient A should be referred to the Crisis Team, because the Registrant believed this was a complex case beyond the scope of the IAPT. The Registrant recognised there was a risk of self-harm, but did not consider there was a risk of suicide. The Registrant did not think the referral needed to be made urgently because Patient A had been referred previously to the Crisis Team, which had discharged her back to the IAPT. She said she forgot to make the referral on that day (Thursday, which was the last day of her three-day working week). She only realised on the Saturday night that she had not made the referral, and told the Panel in her evidence that this meant she could do nothing about it at that time. She returned to work on Tuesday 5 April 2016 and did not remember to make the referral either on that day or on the Wednesday. She only learned on Thursday 7 April 2016 of Patient A’s suicide attempt by overdose on the morning of Monday 4 April 2016.

Panel Decision

13. Ms Shameli submitted that the HCPC had produced sufficient evidence for the Panel to find that each Particular of the Allegation was proved on the balance of probabilities. She submitted that the evidence of the two HCPC witnesses was both credible and reliable, and supported by the exhibited documents in the hearing bundle. She submitted that the Registrant had provided inconsistent accounts of what took place on 31 March 2016 and her rationale for not making the referral to the Crisis Team.

14. Ms Wheeler submitted only Particular 1(a) had been denied by the Registrant and that was on the basis that the Registrant had carried out a full risk assessment, although she did not record it. There was evidence from both the Registrant and NH of that full risk assessment. Particular 1(b) was admitted, but on the basis that there was no risk of suicide on 31 March 2016. Particular 1(c) was admitted. Particular 1(d) was admitted on the basis that there had been no recent suicide attempt by Patient A as at 31 March 2016. She submitted that the words “suicide attempt” required an intention to take one’s own life.

15. The Panel accepted the Legal Assessor’s advice that the burden of proof was upon the HCPC to prove each and every Particular in the Allegation, and the standard of proof required was that a fact had to be proved on the balance of probabilities.

16. The Panel carefully considered all the documentary and oral evidence and the submissions made. The Panel assessed the credibility and reliability of the HCPC witnesses and the Registrant. EA carried out the Trust Investigation and her evidence was limited to that. The Panel considered her to be professional, consistent and reliable. The Panel considered NH was a credible witness who readily accepted that her recall was limited as the events occurred over two years ago. Overall, NH was a reliable witness. With regard to the Registrant, the Panel was of the view that she had provided varying and inconsistent accounts over the past two years of key issues concerning events and the rationale for her actions and omissions. The Registrant was clear that she felt overwhelmed in her job and was, at times, confused.

Particular 1(a) – found proved

17. There was no documentary evidence to support the Registrant’s case that she had carried out a full risk assessment. In her oral evidence, the Registrant did not give any indication that she had explored impulsivity or alcohol consumption with Patient A. The Panel accepted the evidence of EA, Team Leader of the IAPT service at the Trust, that those issues should be explored as part of a full risk assessment. The Panel accepted NH’s evidence that, if the Registrant had mentioned exploring those issues with Patient A, NH would have recorded that in her written note of the discussion. In addition, the Registrant’s own written statement to the Trust investigation stated that she had made a further appointment with Patient A “in order to carry out a full assessment of her presenting issues and further explore her self-harming behaviour as her way of coping with stress.”

Particular 1(b) – found proved

18. The Registrant’s evidence was that she did not identify a risk of suicide by Patient A during screening. This was because, in the Registrant’s view, there had to be an immediate or urgent intention at that time expressed to her by Patient A to amount to a classification of risk of suicide. The Panel accepted EA’s evidence that this was not the correct test. Rather, a risk of suicide should have been the Registrant’s conclusion if she had correctly considered the wider aspects of Patient A’s case. Those wider aspects included:

• the attempt at suicide in the previous week, when she took an unknown number of paracetamol tablets and then vomited;

• the extent of alcohol consumption revealed in the triage notes;

• the volatile relationship with the boyfriend with whom Patient A lived and Patient A’s feelings that she had nobody to support her;

• the history of impulsivity;

• the long and increasing history of self-harm by cutting on average three times a week.

Particular 1(c) – found proved

19. The Registrant accepted in her evidence that she did not refer Patient A to the Crisis Team on 31 March 2016, nor when she returned to work on Tuesday 5 April 2016. She said that she then forgot about it again when she was in work on Wednesday 6 and Thursday 7 April 2016. The Registrant had agreed in supervision with NH on 31 March 2016 that she would make that referral. On the morning of Monday 4 June 2016, Patient A had made another suicide attempt by taking an overdose of sleeping pills with alcohol, which had resulted in hospital admission.

Particular 1(d) – found proved

20. The Panel noted the evidence of NH that, following her discussion with the Registrant, she documented that Patient A had made a suicide attempt the previous week. NH had noted that Patient A’s actions in the previous week to her appointment with the Registrant amounted to a suicide attempt, rather than merely a “cry for attention”, which is how the Registrant viewed it. The Registrant’s recorded notes gave no indication that this incident was recent. The Registrant’s evidence was that Patient A had told her that it had occurred in the previous week. Such a significant matter needed to be recorded in the notes.

Decision on ground

21. Ms Shameli submitted that the issue of misconduct was a matter for the professional judgement of the Panel, but misconduct was a serious falling short of what was proper in the circumstances. The Panel would be assisted by the HCPC’s published “Standards of Conduct, Performance and Ethics” (January 2016) and “Standards of Proficiency for Practitioner Psychologists” (July 2015), and by the HCPTS Practice Note “Finding that Fitness to Practise is ‘Impaired’”.

22. Ms Wheeler submitted that the Registrant had made a mistake on this occasion in this context of a busy and stressful IAPT practice, at a time where the Registrant had returned from a prolonged absence from work.

4. The Panel accepted the Legal Assessor’s advice that the matter of misconduct was a matter for the independent professional judgement of the Panel. Misconduct requires a serious departure from proper professional standards; a single negligent act or omission would be unlikely to amount to misconduct, but could do so if particularly serious. Further, multiple negligent acts or omissions were more likely to cross the threshold of misconduct. Serious misconduct has been described in legal cases as conduct which put service users at unwarranted risk of harm; conduct which brought the profession into disrepute; and conduct which breached a fundamental tenet of the profession.

23. The Panel carefully considered the proven facts.

24. The Panel determined that the facts of Particular 1(a) did not amount to misconduct. The Registrant did carry out a partial assessment, although it was inadequate in its scope and its recording, but it had not intentionally been inadequate. The fact that the Registrant had promptly sought out supervision on the case provided a satisfactory safety net to mitigate potential consequences of her poor assessment.

25. The Registrant failed to identify the nature and severity of Patient A’s problems in Particular 1(b), such that she failed to identify the risk of suicide. Her conduct fell far short of the proper expectations and standards expected of a Practitioner Psychologist. The Panel determined that the facts in Particular 1(b) amounted to misconduct.

26. The proven facts in Particular 1(c) were a serious matter. It involved the Registrant not ensuring that she carried out an instruction given to her in supervision to refer Patient A to the Crisis Team. The Panel accepted NH’s evidence that a referral should have been made immediately because Patient A was at risk of suicide. Furthermore, a referral needed to be made immediately because the Crisis Team, by definition, dealt with urgent matters. The result was that Patient A, a vulnerable patient, did not receive urgent support from the Crisis Team with the obvious real risk of harm to Patient A that that lack of urgent support presented. The Panel determined that the facts in Particular 1(c) amounted to misconduct.

27. The failure of the Registrant to record the recent suicide attempt in Particular 1(d) did fall short of professional standards. The Panel determined that this was not a serious falling short because that failure to record occurred after her supervision with NH. During supervision, NH had recorded in the clinical notes that recent suicide attempt by Patient A. The Registrant’s failure to record had therefore not put Patient A at risk of harm, so the Panel determined that this did not amount to misconduct.

28. The identified failures also amounted to misconduct because they amounted to serious breaches of the following HCPC standards:

Standards of Conduct, Performance and Ethics (January 2016)

1.3 - You must encourage and help service users, where appropriate, to maintain their own health and well-being, and support them so they can make informed decisions.

6.1 - You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible

7.1 - You must report any concerns about the safety or well-being of service users promptly and appropriately

Standards of Proficiency for Practitioner Psychologists (July 2015)

2.7 - be able to exercise a professional duty of care

2.11 - understand the organisational context for their practice as a practitioner psychologist

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

14.3 – be able to conduct appropriate assessment or monitoring procedures, treatment, interventions, therapy or other actions safely and effectively

14.20 - be able to critically evaluate risks and their implications.

Decision on impairment

29. Ms Shameli submitted that the issue of whether the Registrant’s fitness to practise is currently impaired by reason of the proven past misconduct is also a matter for the professional judgement of the Panel. The Panel, she submitted, would also be assisted by the HCPTS Practice Note “Finding that Fitness to Practise is ‘Impaired’”.

30. Ms Wheeler submitted the misconduct was remediable, and the Registrant had taken steps to remedy it, so that there was no real risk of repetition. She also submitted that the references and testimonials provided showed that the Registrant was a committed professional.

5. The Panel accepted the Legal Assessor’s advice that the Panel had to consider whether that past misconduct leads to this Registrant’s fitness to practise being impaired now. There are two component parts of the test for impairment. First, there is what may be termed the ‘personal’ component of this decision; the Panel considers the proven past misconduct, together with all the other evidence the Panel have in respect of the Registrant (e.g. insight, any evidence of the remedying of the deficiencies, the risk of repetition, the risk to the public presented by any repetition of the misconduct). Second, the Panel must also consider what may be termed the ‘public’ component; namely, what would be the effect of not finding impairment on the wider public interest? That wider public interest includes the maintenance of public confidence in the profession and its Regulator and the declaring and upholding of proper standards of conduct. Those components are dealt with in the HCPTS Practice Note “Finding that Fitness to Practise is ‘Impaired’”.

31. The Panel determined that the following aggravating features were present:

• the misconduct occurred when the Registrant did not have a full caseload;

• the Registrant did not follow the clear written protocol for risk assessment;

• the Registrant was returning to work after an absence of many months and had been directed to re-read procedures;

• the failure to refer to the Crisis Team was because the Registrant repeatedly “forgot”;

• the failure of the Registrant to immediately alert her line manager to her failure to make the referral once she realised she had failed to make the referral.

32. The Panel identified the following mitigating features in respect of the misconduct:

• the Registrant was in a very stressful and busy job;

• the Registrant has shown remorse;

• the Registrant has engaged in the regulatory process;

• the incident involved only one patient and essentially occurred in a short period of time;

• there has been a partial acknowledgement of her mistakes;

• the Registrant has embarked on training courses relevant to her misconduct.

38. The Panel considered the personal component of the test of current impairment. The Panel acknowledged the Registrant has taken some steps to address her failures in this case, but the Panel determined that she has not yet developed full insight into, nor fully remedied, her failings in the identification of a risk of suicide during assessment. Further, the Registrant had not shown sufficient insight into the seriousness of her “forgetting” to refer a vulnerable patient to the Crisis Team as directed in supervision. These factors led to risk of repetition, and any repetition of the misconduct would expose vulnerable patients to the risk of harm.

39. Turning to the public component, the Panel determined that the public would rightly expect a Practitioner Psychologist, who had not yet remedied her failings in identifying the risk of suicide during an assessment and had not displayed full insight into the seriousness of forgetting to make a referral to the Crisis Team, to be regarded as not being currently fit to practise.

40. In these circumstances, the Panel determined that the Registrant’s fitness to practise is currently impaired.

Decision on sanction

41. Ms Shameli submitted that the appropriate sanction, if any, was a matter for the independent judgement of the Panel applying the HCPC’s “Indicative Sanctions Policy” (March 2017).

42. Ms Wheeler submitted that there was a public interest in keeping a professional in practice, and submitted that the Panel should take into account that the Registrant had a previously unblemished career, and that the Trust did not dismiss the Registrant and only imposed a final written warning. Ms Wheeler submitted that a Caution Order could be regarded as a sufficient and proportionate order for what may be considered as a relatively minor matter that arose over a short period. If the Panel did not think that was sufficient, then Ms Wheeler submitted that a Conditions of Practice Order could be devised that would sufficiently address the issues in this case.

43. The Panel accepted the Legal Assessor’s advice that:

a) the appropriate sanction, if any, is a matter for the independent judgement of the Panel;

b) the Panel must at all times bear in mind that the purpose of imposing a sanction is to protect the public in accordance with the over-arching objective of the exercise of the HCPC’s powers set out in Article 3(4) of the Health and Social Work Professions Order 2001, as amended. This includes promoting and maintaining the public’s confidence in the profession and promoting and maintaining proper standards of conduct. The purpose of a sanction is not to rehabilitate the Registrant, nor to punish the Registrant, although a restriction on the Registrant’s registration may have a punitive effect;

c) The Panel should consider the impact of a particular sanction on the Registrant, but it is not the primary consideration;

d) the Panel must take account of the HCPC’s guidance in its published “Indicative Sanctions Policy”, which includes the need for the Panel to exercise the principle of proportionality. This means that if a sanction is required, the sanction imposed should be the minimum appropriate sanction to achieve the over-arching objective. If the Panel deviates from that published Policy, it should state clear and cogent reasons for so doing.

44. The Panel determined that it would be insufficient to make no order because there were public protection concerns and the issue of maintaining confidence in the profession when there has been misconduct which had put a patient at risk of harm, and there remains a risk of repetition.

45. Mediation was inappropriate because the Registrant was no longer employed by the Trust and had no current employer.

46. The Panel next considered a Caution Order. The Panel determined that this would not provide sufficient protection to the public, nor would it promote and maintain confidence in the profession or declare and uphold proper standards for the profession. The guidance in paragraph 28 of the “Indicative Sanctions Policy” was that a Caution Order would not be appropriate because there remained a risk of recurrence, the Registrant’s misconduct could not be regarded as relatively minor in nature, and the Registrant had not completed the necessary remediation.

47. The Panel did consider that a Conditions of Practice Order could provide sufficient protection to the public and the wider public interest, if suitable conditions could be devised. Those conditions would need to address oversight of the Registrant’s practice regarding risk assessment and the importance of putting care management decisions into effect in a timely manner.

48. For the reason that suitably framed Conditions of Practice would provide sufficient protection in accordance with the over-arching objective, the Panel was of the view that, applying the principle of proportionality, the next higher sanction of a Suspension Order was not required. The misconduct is remediable although it is not yet remedied.

49. The Panel determined upon the Conditions of Practice set out below. The appropriate duration of that Order is 12 months, because this will provide the Registrant with a reasonable period of time to fully remediate her misconduct.

50. Before the expiry of the Conditions of Practice Order, it will be reviewed by another panel. That reviewing panel may be assisted by the Registrant’s attendance and:

a) evidence of the satisfactory completion of any training and/or learning that addresses the misconduct in this case;

b) a report from the Registrant’s supervisor in respect of the Registrant’s risk assessment capabilities, particularly in respect of suicide risk, and the putting into effect of care management decisions;

c) a further reflective piece centring on the identification of suicide risk and the importance of putting care management decisions into effect in a timely manner.

Order

The Registrar is directed to annotate the Register to show that, for a period of 12 months from the date that this Order comes into effect (“the Operative Date”), you, Ms Elif Clarke, must comply with the following conditions of practice:

1. You must promptly inform the HCPC prior to returning to practise as a Practitioner Psychologist with details of your employer and your role or details of your self-employment.

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

3. 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);

D. any supervisor as identified in Condition 4 below.

4. At any time that you are practising as a Practitioner Psychologist, whether employed or self-employed, you must place yourself and remain under the supervision of a Practitioner Psychologist registered by the HCPC and supply details of your supervisor to the HCPC within one month of the commencement of practice. You must attend upon that supervisor as required and the supervision must address, in particular, identification of suicide risk and the putting into effect of care management decisions. You must also follow their advice and recommendations.

Notes

This order will be reviewed again before its expiry.

Hearing History

History of Hearings for Ms Elif Clarke

Date Panel Hearing type Outcomes / Status
04/06/2018 Conduct and Competence Committee Final Hearing Conditions of Practice