Miss Janine Santos

Profession: Physiotherapist

Registration Number: PH103674

Interim Order: Imposed on 31 May 2017

Hearing Type: Review Hearing

Date and Time of hearing: 09:00 29/05/2018 End: 11:30 29/05/2018

Location: Raddison Blue Hotel, Cardiff

Panel: Conduct and Competence Committee
Outcome: Struck off

Please note that the decision can take up to 5 working days to be uploaded onto the HCPTS website. Please contact one of our Hearings Team Managers via tsteam@hcpts-uk.org or +44 (0)808 164 3084 if you require any further information.

 

Allegation

 

Whilst employed as a Physiotherapist by Hywel Dda University Health Board:

1. You did not attend for work on the following dates when you were on call:

a) 28 March 2015;

b) 29 March 2015;

c) 12 April 2015;

2. On or around 14 April 2015, you claimed payment for the following sessions which you did not work:

a) Two sessions on 28 March 2015;

b) Two sessions on 29 March 2015;

3. Your actions described in particular 2 were dishonest;

4. Your actions described in particulars 1, 2 and 3 constitute misconduct;

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

 

Finding

Preliminary matters:

Service

1. The notice of this hearing was sent to the Registrant at her address as it appeared in the register on 27 April 2018. The notice contained the date, time and venue of today’s hearing.

2. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”).

Proceeding in Absence

3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Ms Senior on behalf of the HCPC.

4. Ms Senior submitted that the HCPC has taken all reasonable steps to serve the notice on the Registrant by registered post-dated 27 April 2018 and email 02 May 2018. She further submitted that the Registrant has never engaged with the HCPC during these proceedings, and that an adjournment would serve no useful purpose in securing the Registrant’s attendance. She reminded the Panel that there was a public interest in this matter being dealt with expeditiously.

5. The Panel accepted the advice of the Legal Assessor. She referred the Panel to the case of R V Jones  & Hayward [2002] UKHL 5 and GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised the Panel that the Adeogba case reminded it that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

6.  It was clear, from the principles derived from case law that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.

7. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case against the Registrant’s right to a fair hearing.

8. The Panel was satisfied that all reasonable efforts had been made by the HCPC to notify the Registrant of the hearing.

9. In reaching its decision, the Panel took into account the following:

• The Registrant has not made any efforts to engage in these proceedings which were initially referred in December 2015 to the HCPC;

• There is a public interest in this substantive order being reviewed before it expires.

10.  It determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date. Having weighed the public interest for expedition against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

Background

11. The Registrant is a Physiotherapist. She qualified in 2012 and commenced employment as a Band 5 physiotherapist and was placed on a respiratory rotation at Hywel Dda University Health Board (“Health Board”) on 28 July 2014. The Respiratory Physiotherapy Service at the Health Board operated an “on call” service and part of the Registrant’s role involved undertaking “on call” shifts. The case concerned the allegations that the registrant did not attend the hospital when she was required and dishonestly claimed for “on call” shifts that she had not worked.

12.  Following an internal disciplinary hearing, these matters were subsequently referred to the HCPC and the substantive hearing was held on 30 May 2017 – 1 June 2017. The Registrant did not attend and the following allegations were found proved:

Whilst employed as a Physiotherapist by Hywel Dda University Health Board:

1. You did not attend for work on the following dates when you were on call:
a) 28 March 2015;
b) 29 March 2015;
c) 12 April 2015;

2. On or around 14 April 2015, you claimed payment for the following sessions which you did not work:

a) Two sessions on 28 March 2015;
b) Two sessions on 29 March 2015;

3. Your actions described in particular 2 were dishonest;

4. Your actions described in particulars 1,2 and 3 constitute misconduct;

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

A 12-month Suspension Order was imposed as a sanction at the conclusion of the Substantive Hearing on 01 June 2017.

Decision

Submissions

13.  Ms Senior outlined the background of the case and submitted that in the light of the lack of substantive engagement on the part of the Registrant her fitness to practise remains impaired. She submitted that the onus was on the Registrant to demonstrate that her fitness to practise was no longer impaired and there was no evidence before the panel today to enable it to conclude that she had addressed her previous failings. She submitted that a finding of impairment was necessary on both public protection and public interest grounds.

14. With regard to sanction, she submitted that the Panel should have regard to the HCPC Indicative Sanctions Policy. She submitted that a Conditions of Practice Order would not be appropriate given the nature of the Registrant’s misconduct and her non-engagement. She also submitted that an extension of the Suspension Order would serve no useful purpose and would not further the public interest. Therefore, the HCPC submitted that the Registrant’s name should be struck off the register.

Legal advice

15. The Legal Assessor reminded the Panel that its purpose today was to conduct a comprehensive review to determine if the Registrant is fit to return to unrestricted practice. Its role was not to conduct a rehearing of the allegations nor was it to go behind the previous findings. She advised that in carrying out this assessment, the Panel must exercise its own independent judgment.

16.  The Legal Assessor advised that the Panel might find the questions formulated in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin) of some assistance, albeit slightly modified for these proceedings: Does the evidence before the Panel today show that the Registrant’s fitness to practice remains impaired by reason of her misconduct in the sense that she:

a) is liable in the future to act so as to put a service user at unwarranted risk of harm; and/or

b) is liable in the future to bring the Physiotherapy profession into disrepute; and/or

c) is liable in the future to breach one of the fundamental tenets of the profession?

17. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired then the Panel must go on to consider what sanction, if any, should be imposed. The Legal Assessor advised the Panel that if it determined that the Registrant’s fitness to practise remained impaired any of the options under Article 30 of the 2001 Order could be exercised by the Panel. She also advised the Panel that it should bear in mind the principle of fairness and proportionality and have regard to the Indicative Sanctions Policy document issued by the HCPC. She reminded the Panel that any order that it makes under Article 30 should not be punitive in purpose, and that it should be the least restrictive order that would suffice to protect the public and/or is otherwise in the public interest.

18. The Panel accepted the advice of the Legal Assessor. The Panel first considered whether the Registrant’s fitness to practise is currently impaired. The Panel took into consideration all the documentation before it, and the submissions of Ms Senior. In particular it noted the following factors:

(a) This is a case of misconduct and there is no suggestion that the Registrant lacked the requisite competence to carry out the role of a physiotherapist. In fact, there was evidence available at the substantive hearing, which indicated that the Registrant was a competent team member. This is a case involving attitudinal issues, where the Registrant’s insight is of greater importance.

(b) The lack of engagement of the Registrant with the process, resulting in the absence of any indication that the Registrant remained committed to the profession and any information regarding the Registrant or her current circumstances including any continuing professional development since the allegations of 2015.

19. There is no evidence before the Panel today that could satisfy it that the Registrant’s fitness to practise is no longer impaired. She did not engage with the substantive hearing nor has she engaged in this review process.

20. There was no evidence of insight or reflection on the part of the Registrant regarding her misconduct.  All the facts found proved led the previous panel to conclude that there was a real risk relating to the protection of patients and the wider public interest. In the light of the lack of insight and remediation on the part of the Registrant, this Panel concluded that public protection and the wider public interest remain current issues.

21.  In the light of all the above, the Panel determined that the Registrant’s fitness to practise remains impaired.

22. The Panel then went on to consider what the appropriate and proportionate sanction should be. It had regard to the Indicative Sanctions Policy issued by the HCPC and considered the available sanctions in order of severity, starting with the least restrictive. In the light of the lack of engagement, the Panel determined that taking no further action or imposing a caution would not be sufficient to protect the public, nor would either be in the public interest.

23. The Panel considered whether to impose a Conditions of Practice Order but concluded that it would neither been appropriate nor could it formulate adequate conditions that would properly address the attitudinal issues identified. This is not a case where there are identified areas of the Registrant’s practice where she lacks competence that could be addressed by conditions.

24.  The Panel went on to consider a further period of suspension but concluded that this was also not appropriate. The panel on the last occasion was unambiguous when it stated that:

“The Panel determined that the Suspension Order should be imposed for a period of 12 months. The Panel was satisfied that this period would be sufficient for the Registrant to develop an appropriate level of insight into her failings. If she is unable to develop or demonstrate insight within that time frame it is highly unlikely that she will ever be able to do so.”

25. That panel also provided guidance as to what the Registrant could do in the subsequent period in order to demonstrate insight.

26.  This Panel was disappointed that the Registrant had not taken any steps to engage with the process and it determined that the Registrant has had than sufficient time to provide evidence that she has reflected upon the findings of the previous panel.  The Panel considered that this was unlikely to change in future, bearing in mind the Registrant’s total non-engagement with the HCPC about her fitness to practise.

27. The Panel considered very carefully whether a further period of suspension would give the Registrant a further opportunity to remedy her failings. On balance, the Panel determined that a further period of suspension would serve no useful purpose and would not further the public interest.  The Registrant has not engaged with her regulator throughout these proceedings, which were initially refereed in December 2015, the attitude of the Registrant, coupled with the resultant risk to the public and the public interest means that it is no longer appropriate for the Registrant to remain on the HCPC register.

28. The Panel determined that the appropriate and proportionate sanction is to strike the Registrant’s name off the Register. The Panel had regard to the impact that a striking off order would have on the Registrant but considered that the public interest in upholding proper standards of professional conduct and public confidence in the HCPC as a regulator outweighed the Registrant’s own interests.

Order

ORDER: That the Registrar is directed to strike the name of Janine Santos from the Register on the date this order comes into effect.

Notes

No notes available

Hearing History

History of Hearings for Miss Janine Santos

Date Panel Hearing type Outcomes / Status
29/05/2018 Conduct and Competence Committee Review Hearing Struck off
30/05/2017 Conduct and Competence Committee Final Hearing Suspended