Miss Maryanne Doreen Elliott
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(As amended at the Final Hearing commencing 1 October 2018).
During the course of your employment as a Physiotherapist with Torbay and South Devon NHS Foundation Trust, you:
1. Did not appropriately assess and/or record the assessments of:
a) Patient 1, following an appointment on or around 12 February 2010;
b) Patient 2, following an appointment on 20 August 2008;
c) Patient 3, following an appointment on or around;
i. 18 August 2008; and / or
ii. 15 September 2008
d) Patient 4, following an appointment on or around 28 March 2012;
e) Patient 5, following an appointment on or around 21 May 2012;
f) Patient 6, following an appointment on or around 19 March 2013;
g) Patient 7, following an appointment on or around 25 November 2014;
h) Patient 8, following an appointment on or around;
i. 16 March 2007; and / or
ii. 4 April 2007; and / or
iii. 23 April 2007;
i) Patient 9, following an appointment on or around;
i. 13 November 2009; and / or
ii. 1 December 2009; and / or
iii. 15 January 2010;
j) Patient 10, following an appointment on or around 16 March 2010.
2. During annual audits of your records for patients at Bovey Tracey Hospital, you did not select records to be reviewed which you knew to be inadequate.
3. The matter set out in particular 2 amounts to dishonesty.
4. The matters set out in paragraphs 1 a - j constitute misconduct and/or lack of competence.
5. The matters as described in paragraph 3 amount to misconduct.
6. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.
Facts Proved: 1, 2 and 3.
Facts Not Proved: N/A
Fitness to Practise Impaired: Yes
Sanction: Strike Off
Proof of Service
1. The Panel accepted the advice of the Legal Assessor. The Panel had sight of a letter dated 6 July 2018, sent to the Registrant at her registered address, giving notice of today’s hearing, and determined that service had been complied with in accordance with the Health and Care Professions Council (Conduct and Competence Panel) (Procedure) Rules 2003.
Proceeding in Absence
2. The Panel heard and accepted the advice from the Legal Assessor, who referred it to the case of the GMC v Adeogba  EWCA Civ 162, and the principles to be considered when deciding whether or not to proceed in the absence of the Registrant. The Panel had in mind the need to exercise its discretion to proceed with the utmost care and caution, particularly because the Registrant was not represented.
3. The Panel noted that the Registrant had not responded to the notice of today’s hearing but was satisfied that she was, or should be, aware the hearing was due to go ahead today and that, in the event that she did not attend, the hearing could go ahead in her absence. The Registrant had completed the Response Pro-Forma dated 4 March 2018, in which she made it clear she would not be attending the hearing. Furthermore, in a letter dated 4 March 2018, the Registrant stated that she had retired from working as a Physiotherapist in February 2017, would not be returning to the profession and would not be attending the final hearing. She added that she understood that the HCPC had a duty to follow procedures which would take time.
4. In light of that correspondence, the Panel decided that the Registrant had voluntarily waived her right to be present and her right to be represented at this hearing. The Panel noted that the Registrant faced serious allegations and there was a clear public interest in the matter being dealt with expeditiously. The Panel considered an adjournment would serve no useful purpose, because it seemed most unlikely that the Registrant would attend on another occasion, given her stated intentions. Furthermore, the Panel noted she had not requested an adjournment. The Panel took into account that there were two witnesses attending today and was concerned about the effects of delay on their memories if the matter were to be adjourned.
5. The Panel concluded that it was in the interests of justice that the matter should proceed notwithstanding the absence of the Registrant. The Panel would draw no adverse inferences from the Registrant’s non-attendance.
Application to Amend the Allegation
6. At the outset of the hearing, Ms Parry applied to amend the Particulars of the Allegation to adjust the dates in 1(a), 1(c), 1(h) and 1(i) to more accurately reflect the evidence of FH who had viewed the electronic diaries of appointments with the respective patients. Ms Parry also applied to amend Particular 2 to more accurately reflect the evidence of VS in respect of her meeting with the Registrant, to make it more straightforward, but not in any way more onerous. The Registrant, who had advance notice of the proposed amendments, had not indicated any opposition to the application.
7. The Panel heard and accepted the advice from the Legal Assessor that it could amend the Allegation provided it was satisfied that it was fair to do so and that the proposed amendment could be made without injustice. The Panel noted that the Registrant had been informed of the proposed changes and had not indicated any opposition to the application. Having said that, the Panel noted that the letter sent to the Registrant detailing the proposed amendments did not ask specifically whether she opposed the application, which was unhelpful. However, the Panel was satisfied that the amendments requested more accurately reflected the evidence and could be made without causing any injustice. The Panel therefore decided to allow the amendments requested. The Panel pointed out to the Presenting Officer, that although the Registrant had made admissions to the Allegation in her correspondence with the HCPC, those admissions were not to the amended version of the Allegation and this would be borne in mind by the Panel when making its findings on the facts.
8. The Panel heard from two witnesses called on behalf of the HCPC:
• Witness FH - Musculoskeletal Clinical leader
• Witness VS - Head of Physiotherapy
9. The Registrant did not attend. She had, however, sent a letter to the HCPC dated 4 March 2018, in which she stated she had returned the HCPC Response Proforma: Notice of Allegation, admitting the facts alleged against her (as set out in unamended form in a letter dated 29 January 2018).
10. The Registrant is, and was at all material times, registered as a Physiotherapist with the HCPC.
11. The Registrant was employed by Torbay and South Devon NHS Foundation Trust (the “Trust”) as a Band 6 Musculoskeletal (“MSK”) Outpatient Physiotherapist based at four locations, the Riverside Surgery in Bovey Tracey, Bovey Tracy Hospital, Ashburton Hospital and the Towerhouse Surgery in Chudleigh. She commenced her role in 1986 and retired in February 2017.
12. On 15 February 2017, the Registrant handed her notice of resignation in to the Trust. There was no information in her resignation letter about what prompted her resignation other than the fact that she was retiring. She requested a termination date of 22 March 2017, giving slightly more than one month’s notice. VS, Head of Physiotherapy received the letter and was concerned about the fact that the Registrant had given such a short notice period when usually an employee would give four months’ notice prior to retirement.
13. VS arranged a meeting with the Registrant, which took place on 22 February 2017. It is said that during the meeting the Registrant admitted that she had been experiencing difficulties in completing records and as a consequence she had not completed patient clinical records for approximately 12 years. She explained that she made notes about the subjective assessment of a patient, but she would routinely not write up the objective assessment, treatment plan, or intervention. The Registrant also admitted she had actively tried to hide the fact that she had not been completing patient records by self-selecting complete records for audit purposes. VS stated that the Registrant was clearly and visibly distressed and upset about the admissions and her failure to keep records. The Registrant had also advised that she had not been sleeping properly for several years due to worrying about this.
14. Following the meeting, VS instructed FH, the MSK Clinical Manager, to conduct an audit of the Registrant’s clinical records at the different sites she had worked at. FH submitted her completed audit to VS on 9 March 2017.
15. The Allegation in this case arises directly from the results of that audit. It is alleged that in relation to the 10 patient records selected for particularisation in the Allegation, the Registrant either did not properly assess the patients and/or did not record the assessments. However, in her closing submissions, Ms Parry, on behalf of the HCPC, made it clear that the HCPC’s case, following the evidence of FH and VS who spoke highly of the Registrant’s clinical abilities, was focussed on the lack of record keeping rather than a failure to carry out appropriate assessments.
16. FH said that the Registrant worked at four different locations. She said at Ashburton Hospital she worked with two other physiotherapists and all the notes there were up to standard, indicating that she could complete notes properly. At the other three locations, however, she worked single-handedly and it was at these locations that there were issues with the records. FH did not know why this was the case.
17. FH said that she reviewed the records for Bovey Tracey Hospital (which were in paper form) and of the 58 records reviewed only 13 sets had been completed correctly. She stated that the level of completion for the records she reviewed at Bovey Tracey Hospital was totally inadequate. She said the notes were poor, often with no objective information at all, often with incomplete assessments with no information about who the patient was and with no appointment date. Some of the notes only had a patient name without any other information. Often the notes had no information about follow up appointments, despite the computer records indicating that patients attended for follow up.
18. FH said that she also checked the patient records at the Riverside Surgery, where she found the records to be much better in terms of the level of recording, when compared with those reviewed from Bovey Tracey Hospital. FH pointed out that whilst the Registrant did not work with anyone else at the Riverside Surgery, the service was part of the GP surgery and she thought this may have had some impact on the Registrant’s recording of notes.
19. However, having checked 34 sets of notes from the Riverside Surgery and 13 sets of notes from the Towerhouse Surgery, FH found 29 of the 47 had been completed correctly. She said that the level of recording for the incomplete records varied. She said that for the most part they were not signed or dated and they contained no objective information and limited subjective information. She said that on many of the records reviewed there was no indication that the Registrant had even examined the patient. Sometimes she found exercise sheets in the files outlining exercises the patients should do, but there was no information about why the exercises had been given to the patient.
20. In her oral evidence, FH said that there was nowhere else that this missing information could have been recorded. The computer records only recorded appointments made, not the detail of what happened at an appointment. That detail should be recorded in the paper records she examined.
21. FH said that the HCPC asked for a random selection of the inappropriate notes to be considered and so she selected the first 10 sets she came to in the box of all the notes she had reviewed and found to be inappropriate. It is that random selection that formed the basis of the Allegation before the Panel.
22. In her evidence, FH detailed how each of those 10 sets of records were deficient, explaining what was missing and should have been present. For example, there being no record of: the nature of the pain; whether the pain was constant or intermittent; whether there were any aggravating or easing factors; special questions to identify serious pathology; neurological symptoms; objective measures in relation to range of movement; power; palpation; working diagnosis; plan of treatment/management; date and signature of attending physiotherapist; no follow up information from subsequent appointments; and no information about the patient’s progress.
23. FH said in her witness statement, “If the physiotherapist is not adequately recording assessments it creates a patient safety issue. If the patient were to return for more treatment, there would be no record or indication of what treatment they received previously. A newly allocated physiotherapist would have no idea what to base their treatment on, or whether the previous treatment the patient was given was appropriate. Although it is unlikely to cause serious harm to a patient, it is very unprofessional not to be able to comment on whether the patient has made progress since their previous appointment. Without all of the information, a physiotherapist is unable to determine whether the exercises provided are helpful or unhelpful. A new physiotherapist would have to go back and completely reassess the patient. It is not what you would expect from an experienced physiotherapist.”
24. FH noted that whilst her evidence was limited to this audit she had carried out a previous audit of the Registrant’s records in the 1990s which had been outstanding. She expressed her surprise and shock at the way in which the Registrant’s record keeping had deteriorated. She said that she was not aware of any patient complaints related to the Registrant and that, if there had been, the notes would have been looked at and any deficiencies noted at the time.
25. It was further alleged that during annual audits the Registrant deliberately did not select records to be reviewed which she knew were inadequate. That behaviour, the HCPC alleged, was dishonest and fell far below the standard expected of a Physiotherapist.
26. VS said that prior to February 2017, she did not have any concerns about the Registrant’s practice. She said that during clinical training sessions and peer reviews the Registrant’s practice was “exemplary” and patient feedback was “excellent”. VS described the Registrant as “a shining representative of physiotherapy. She was completely focussed on her patients and meeting their needs.” VS said the Registrant’s reputation was “very high within the organisation, she had a lot of respect from her colleagues and me, she had remained as a Band 6, but could easily have progressed to more senior roles had she wanted to."
27. VS referred to the Registrant’s annual appraisals at which clinical record audits were discussed. She said that the Registrant’s clinical records were satisfactorily audited by her line manager and her peer reviews, which would have contained her clinical records, had also been completed and were of an acceptable standard.
28. During the meeting on 22 February 2017, VS said that the Registrant explained that those audits were successful because the randomised audits were carried out at Ashburton Hospital, where the Registrant worked alongside colleagues. Her records there were of an acceptable standard. However, she worked at Bovey Tracey Hospital alone and was responsible for supplying the records for the audits there. As such, she selected records that were of an acceptable standard and would pass the audit. VS said the Registrant admitted to covering up her lack of record keeping.
29. VS said that during the meeting the Registrant was very tearful, distressed and apologetic. She said the Registrant admitted that she had been keeping the fact that she had not been completing patient records hidden. VS said the Registrant clearly realised the gravity of her actions and referred to letting herself and her colleagues down. By way of explanation, the Registrant told VS that matters had been better many years previously when she had a small amount of administrative support. She went on to say that for the past 12 years, although she had been carrying out objective assessments, she would routinely not have time to write them up, together with treatment plans and intervention. She also said she routinely did not write up her follow up reassessment and treatment. She felt the pressure of the high number of patients requesting physiotherapy. She worked during lunch breaks and after her normal hours, but she then struggled to complete the patient records. VS said the Registrant was clearly devastated by her actions.
30. VS said that during her investigation into these matters it was apparent from the Registrant’s appraisals that she had raised concerns that she was struggling to leave on time and working through lunch. VS said that it appeared the Registrant was advised that she should leave work on time, but was not given any other more practical advice or assistance. VS said it was acknowledged that the Registrant was seeing a high number of patients and her case load was at the very “top end.” She said there was a system in place where patients were booked centrally. This meant the Registrant had little control over the number of patients allocated to her, however she could convert a patient slot to, for example, additional admin time in order to complete notes. VS acknowledged that there were enough Bovey Tracey Hospital patients for one and a half physiotherapists and some of those patients were thus diverted to other locations for treatment. However, she recognised that this may have put extra pressure on the Registrant when working at Bovey Tracey Hospital. VS also acknowledged that the Trust had not provided the Registrant with support to resolve the situation she found herself in, although she added that the Registrant had not alerted the Trust about the full extent of the difficulties she was facing over the years.
31. VS said that the Registrant was not under pressure from her Line Manager to deliver more patient care.
32. VS added that the Registrant was very patient focussed and had a very caring manner and a high level of emotional intelligence and awareness of the needs of those around her. This included patients, physiotherapist colleagues and nursing colleagues. She said the Registrant always seemed very clinically up-to-date and this was apparent from her contributions to in-service training. VS said the Registrant clearly understood how important clinical records were as part of a patient’s clinical care. The Registrant told VS that she had a very good memory and would repeat assessments when she saw patients at follow-up appointments, which VS thought was her way of trying to mitigate the situation. When asked why she had not said anything for so many years, the Registrant told VS that she just had to always keep her “game-face” on and felt she could not let anyone down.
33. The Panel had sight of the audit report completed by FH and the records from which it was compiled.
Decision on Facts
34. In reaching its decisions on the facts the Panel took into account the evidence provided by the witnesses called by the HCPC and all the documentary evidence. The Panel also took into account the submissions made by Ms Parry on behalf of the HCPC. As stated earlier, the Registrant did not attend, nor did she provide any written representations for the Panel to consider, other than an admission to the unamended Allegation. The Panel accepted the advice of the Legal Assessor and bore in mind that, notwithstanding those admissions, it was for the HCPC to prove its case on the balance of probabilities. It was not for the Registrant to disprove the allegations.
35. The Panel found both FH and VS to be credible and reliable witnesses who were fair and balanced. Their oral testimony was entirely consistent with their witness statements. FH’s evidence was based on clinical records which the Panel had the benefit of seeing. VS’ evidence was based on the audit report provided by FH and also her meeting with the Registrant on 22 February 2017. The Panel had no reason to disbelieve her account of what was said at that meeting and it was apparent that both witnesses held the Registrant in high regard.
36. The Panel took into account the Registrant’s admissions to all the facts as set out in the notice of Allegation sent on 29 January 2018, before the Allegation had been amended.
Particulars 1(a) to (j) - Found Proved
37. The Panel had the clinical records completed by the Registrant for patients 1 to 10 and checked with care the dates upon which it was alleged the Registrant had either failed to appropriately assess and / or record the assessments of those patients. Those records confirmed what the Registrant is alleged to have admitted to VS, namely that she had not been completing the records adequately. On the evidence it was not possible for the Panel to say whether or not the assessments had in fact been appropriate, but it was clear that many of the results of any assessments that were carried out had not been recorded. The Panel accepted the unchallenged evidence of FH who detailed the respects in which the records for Patients 1 to 10 were inadequate.
38. The Panel took into account the Registrant’s letter of 4 March 2018, in which she admitted all the facts (in their unamended form) and her admission to VS that she had been failing to record patient records for the past 12 years. It also took into account the evidence of VS and FH that the Registrant’s clinical ability was not in doubt and that, as far as they were concerned, she was a competent practitioner who was held in high regard. On the evidence, the Panel could not be satisfied that the assessments had not been carried out appropriately, but it was satisfied that the assessments had not been appropriately recorded on all the dates set out in Particulars 1(a) to (j), as detailed by FH in her evidence. The Panel therefore found these Particulars proved on the basis of the Registrant failing to appropriately record the assessments.
Particular 2 - Found Proved
39. It was clear from the evidence of FH, as discovered when she carried out her audit, that the Registrant had been careful to not select records for annual audits that would have revealed the fact that she was not recording clinical interventions as she should have been. Furthermore, the Registrant had admitted to doing this when she spoke to VS on 22 February 2017, evidence which the Panel accepted. The Registrant also admitted this part of the Allegation in her letter dated 4 March 2018, albeit in a slightly differently worded format. In light of this evidence, the Panel found this Particular proved.
Particular 3 - Found Proved
40. The Panel then considered whether such behaviour was dishonest. The Panel considered what it was that the Registrant had done, what her intentions were and whether the ordinary decent person would find that conduct dishonest. Over a period of many years, the Registrant had been failing to complete patient clinical records and would routinely not write up, inter alia, objective assessments, treatment plans or interventions carried out. She had admitted to VS that she had actively tried to hide the fact that she had not been completing patient records by ensuring none of the deficient records were selected for the annual audits, and the Panel accepted this evidence. The Panel was satisfied that the ordinary decent member of the public, in full possession of the facts of the case, would find that conduct to be dishonest. The Panel noted that the Registrant, in her letter of 4 March 2018, admitted the allegation of dishonesty which, although in its pre-amended form, was essentially the same allegation. The Panel therefore found this Particular proved.
Decision on Grounds
41. The Panel next considered whether the facts found proved amounted to misconduct. In so doing, it took into account all the evidence and the submissions made. The Panel accepted the advice of the Legal Assessor.
42. Over a period of many years, the Registrant chose not to complete patient clinical records in many fundamental, crucial and important aspects. By not recording objective assessments, treatment plans and interventions, the Registrant was preventing any other clinician from knowing what treatment a patient was receiving and how effective that treatment had been. Furthermore, she would have had no baseline herself to know whether or not patients were improving as a result of her treatment.
43. In relation to Allegation 1(h), Patient 8, the Panel considered the Registrant to be in breach of the following parts of the 2003 Standards of conduct, performance and ethics applicable to all HCPC Registrants:
• 1 – You must act in the best interests of your patients, clients and users.
• 10 – You must keep accurate patient, client and user records.
• 14 – You must behave with integrity and honesty.
• 16 – You must make sure that your behaviour does not damage your profession’s reputation.
44. In relation to all patients other than Patient 8, the Panel considered the Registrant to be in breach of the following parts of the 2008 Standards of conduct, performance and ethics applicable to all HCPC Registrants:
• 1 – You must act in the best interests of service users.
• 10 – You must keep accurate records.
• 13 – You must behave with honesty and integrity and make sure that your behaviour does not damage the public’s confidence in you or your profession.
45. In relation to Allegation 1(h), Patient 8, the Panel found there to be breaches of the following parts of the 2005 Standards of proficiency for Physiotherapists in England:
• 1a.6 – recognise the need for effective self-management of workload and be able to practise accordingly;
• 2b.5 – be able to maintain records appropriately.
46. In relation to Allegations 1(a) to (f), Patients 1 to 6, and Allegations 1(i) and (j), Patients 9 and 10, the Panel found there to be breaches of the following parts of the 2007 Standards of proficiency for Physiotherapists in England:
Registrant Physiotherapists must:
• 1a.7 – recognise the need for effective self-management of workload and resources and be able to practise accordingly;
• 2b.5 – be able to maintain records appropriately.
47. In relation to Allegation 1(g), Patient 7, the Panel found there to be breaches of the following parts of the 2013 Standards of proficiency for Physiotherapists in England:
Registrant Physiotherapists must:
• 1.2 – recognise the need to manage their own workload and resources effectively and be able to practise accordingly;
• 2.1 – understand the need to act in the best interests of service users at all times;
• 10.1 – be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines.
48. Over a significant period of time and involving multiple patients, the Registrant’s failure to keep proper records put patient care in jeopardy. Her behaviour was serious and fell far below the standard expected of a registered Physiotherapist. The Panel was in no doubt that the Registrant’s behaviour would be considered deplorable by fellow members of the profession. In all the circumstances the Panel concluded that this behaviour amounted to misconduct and was more than just a lack of competence. Indeed the evidence of the witnesses was that the Registrant was quite capable of keeping adequate records when she chose to do so and Ms Parry made it clear that, following the evidence of FH and VS, the HCPC’s case was one of misconduct and not a lack of competence.
49. Dishonest behaviour by a professional registered with the HCPC is particularly serious. It brings discredit upon the Registrant, the profession and HCPC as its Regulator. The Panel also considered that fellow members of the profession would find the Registrant’s dishonest actions in this case deplorable and were in no doubt that it amounted to misconduct.
Decision on Impairment
50. Having found the statutory ground of misconduct to be well founded, the Panel went on to consider whether the Registrant’s current fitness to practise was impaired as a result of that misconduct. In doing so it took into account the submissions made by Ms Parry and accepted the advice of the Legal Assessor.
51. The Panel considered the Registrant had demonstrated some insight, however she had not expressed any concern about the potential impact of her actions upon patients. She did bring these matters to the attention of her employer, when called upon to explain her short notice-period, and she had made frank admissions from the outset, which she maintained. She had offered an explanation to VS that she felt so under pressure to see patients she simply did not have time to make appropriate records. VS noted that when working as part of a team, it appeared that the Registrant was able to produce records without concerns so clearly she had the capability to do so. The Panel noted that the Registrant did raise the problem with her managers but it was unclear whether she explained the full extent of the issue with them. The Panel also noted the extended period over which this behaviour continued and the multiple patients it affected. Her remorse was clear. VS said the Registrant had appreciated how serious this failing was and had been extremely upset about what she had done. The Registrant felt she had let herself and her colleagues down. In her letter dated 4 March 2018, the Registrant stated, “I am and will always be ashamed and remorseful for my actions.”
52. The Registrant was clearly very highly regarded by her colleagues and yet allowed this behaviour to continue for a significant period of time. The Panel went on to consider whether the Registrant was likely to repeat this behaviour and therefore represented a risk to the public. In her letter of 4 March 2018, she stated, “I can assure you I stopped practising physiotherapy Feb 2017 and will not be trying to return in the future and am therefore not a risk to the public.” Notwithstanding that assurance, the Panel was aware that people can change their minds and it was always possible that the Registrant might decide to return to practice. Apart from her brief letter in March 2018, the Registrant had not engaged with this process. Consequently, there was no evidence of remediation or any assurance that if the Registrant were to find herself in a similar situation she would not repeat the behaviour. She had not provided any reflective statement or indicated what strategies she might put in place to avoid a repetition of her previous failings. Absent this evidence, the Panel could not be satisfied that there was no risk of repetition. Accordingly, the Panel considered there to be a risk that she could in the future put patients at unwarranted risk of harm. Furthermore, if she were to fail to keep records in a similar way in the future that would be liable to bring the profession into disrepute and would be in breach of one of the fundamental tenets of the profession, namely the need to act in the best interests of service users at all times. The Panel therefore found the Registrant’s fitness to practise to be currently impaired on public protection grounds.
53. The Panel considered it unlikely, given all the positive evidence provided about the Registrant’s character by FH and VS, together with the insight and remorse exhibited by the Registrant that she would act dishonestly in the future.
54. The Panel went on to consider whether this was the type of case that required a finding of impairment on public interest grounds in order to maintain public confidence in the profession and the Regulator. The Panel was satisfied that a fully informed member of the public, who was aware of all the background to this case, would have their confidence in the profession and the Regulator undermined if a finding of impairment were not made given the nature and seriousness of the Registrant’s misconduct, which included dishonestly concealing the fact that she was not completing patient records over a significant period spanning 8 years, based on the sample allegations, and 12 years based on the Registrant’s own admission.
55. The Panel therefore determined that the Registrant’s fitness to practise is currently impaired both on public protection and public interest grounds and that the allegation of impairment is well founded.
Decision on Sanction
56. In reaching its decision on sanction, the Panel took into account the submissions made by Ms Parry, together with all the written evidence and all matters of personal mitigation. The Panel also referred to the guidance issued by the Council in its Indicative Sanctions Policy (“ISP”). The Panel had in mind that the purpose of sanctions was not to punish the Registrant, but to protect the public, maintain public confidence in the profession and maintain proper standards of conduct and performance. The Panel was also cognisant of the need to ensure that any sanction is proportionate. The Panel accepted the advice of the Legal Assessor.
57. The Panel considered the aggravating factors in this case to be: the duration of the failure to keep records, spanning 8 years from the randomised sample selected by FH and 12 years according to the Registrant; the duration of the deception in keeping the failure to record hidden from her employer; the large number of patients affected.
58. The Panel considered the following mitigating factors – a previously unblemished record; full and frank admissions to the facts from the outset and following her own declaration about the behaviour, which had hitherto gone unnoticed; a sense of needing to see as many patients as possible; a higher than average workload and possible capacity issues that were not identified or fully addressed by her manager. She was described by VS as otherwise exemplary, patient focussed and very highly regarded within the Trust. VS also referred to some personal issues although unfortunately, due to her lack of engagement, the Panel had very limited information about this.
59. In light of the seriousness of the conduct, the Panel did not consider this was an appropriate case to take no further action or consider mediation, since neither would protect the public from the risks identified by the Panel or reflect the seriousness of the misconduct.
60. The Panel then considered whether to caution the Registrant. However, the Panel was firmly of the view that such a sanction would not reflect the seriousness of the misconduct in this case. The Registrant failed to maintain adequate records for her patients over a significant period, spanning many years. This behaviour was compounded by her actions in ensuring those records looked at for audit purposes were not the ones where she had failed to record matters. By this deceit she was able to conceal from her employer the fact that she was not completing records as she should have been and the Panel has concluded that such action was dishonest. The Panel has already concluded that there is a risk of such behaviour being repeated given the limited insight shown by the Registrant and the complete lack of remediation. A caution, therefore, would not protect the public from any such risk. The Panel was also of the view that public confidence in the profession, and the HCPC as its regulator, would be undermined if such behaviour were dealt with by way of a caution.
61. The Panel next considered whether to place conditions on the Registrant’s registration. The ISP states that before imposing conditions a Panel should be satisfied that:
• the issues which the conditions seek to address are capable of correction;
• there is no persistent or general failure which would prevent the registrant from doing so;
• appropriate, realistic and verifiable conditions can be formulated;
• the registrant can be expected to comply with them; and
• a reviewing Panel will be able to determine whether those conditions have or are being met.
62. The Panel also noted from the ISP that conditions will rarely be effective unless the Registrant is genuinely committed to resolving the issues they seek to address and can be trusted to make a determined effort to do so. The Panel considered that ordinarily the failures in this case, which are essentially record keeping failures, could be addressed by conditions. Dishonesty is not something easily addressed by way of conditions, but the Panel did not believe the Registrant would act dishonestly in the future and there was a specific set of circumstances which appeared to have led to her behaviour. The issue, however, was the fact that the Registrant in her letter of 4 March 2018, had made it clear that she has retired from physiotherapy and, therefore, it could not be said that she was committed to resolve the issues the conditions would seek to address or could be trusted to make a determined effort to do so. The Panel therefore concluded that a Conditions of Practice Order would not be workable in this case.
63. The Panel next considered whether to make a Suspension Order. The ISP states that, “Suspension should be considered where the Panel considers that a caution or conditions of practice would provide insufficient public protection or where the allegation is of a serious nature but unlikely to be repeated and, thus, striking off is not merited”. The Panel has already concluded that a caution or conditions would not provide sufficient public protection. However, the proven allegation is of a serious nature and in light of the limited insight and complete lack of remediation, there was a real concern that the behaviour would be repeated.
64. The Panel therefore looked at the guidance in the ISP on making a Striking Off Order in order to decide whether such an order would be appropriate. The guidance states that, “Striking off is a sanction of last resort for serious, deliberate or reckless acts involving abuse of trust such as … dishonesty or persistent failure. Striking off should be used where there is no other way to protect the public, for example, where there is a lack of insight, continuing problems or denial. A Registrant’s inability or unwillingness to resolve matters will suggest that a lower sanction may not be appropriate”. In this case there were deliberate acts over a period of up to 12 years that involved dishonesty. The Registrant has provided only limited insight and no evidence of remediation which, whilst not unsurprising given her decision to retire, leaves the Panel with a difficult and limited choice when it comes to deciding the appropriate sanction.
65. A Physiotherapist often works autonomously and must be trusted to keep accurate and appropriate records. A failure to do so puts patient care at risk and makes it extremely difficult for other health care professionals, who might be involved in the care of those patients to know what treatment has been provided and the efficaciousness of that treatment. The Panel has found that the Registrant failed, over many years, to act in the best interests of a significant number of her patients and concluded that there continues to be a risk that she would do so in the future in the event that she changed her mind and decided to return to practice as a Physiotherapist.
66. The Panel concluded that, in light of the seriousness of the misconduct, the limited insight and the complete lack of remediation (or evidence of a willingness to remediate), leaving a real risk that the behaviour would be repeated, the only appropriate sanction in this case was to make a Striking Off Order. The Panel took into account the impact this would have upon the Registrant, but concluded that the need to protect the public outweighed her interests and that no other sanction would adequately protect the public.
67. The Panel therefore directs the Registrar to strike the Registrant off the Register.
The Registrar is directed to strike the name of Miss Maryanne Doreen Elliott from the Register on the date this Order comes into effect.
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.
1. The Panel heard submissions from Ms Parry on the need for an Interim Order to cover the period during which an appeal may be made and, if one is made, whilst that appeal is in progress. The Registrant was not present and therefore the Panel had first to decide whether to proceed to consider the Interim Order application in the absence of the Registrant. The Panel heard and accepted the advice of the Legal Assessor.
2. The Panel decided that it was appropriate to consider the Interim Order application in the absence of the Registrant. In reaching this conclusion the Panel took into account the contents of the Notice of Hearing sent to the Registrant on 6 July 2018 where it is stated under the heading “Interim Orders”, “Please note that if the Panel finds the case against you is well founded and imposes a sanction which moves, suspends or restricts your right to practise, it may also impose an interim order on you (under Article 31 of the Health and Social Work Professions Order 2001). An interim order suspends or restricts a registrant’s right to practise with immediate effect.” The Panel was satisfied that this meant that the Registrant was on notice that this was a possible outcome at this hearing. The Panel remained satisfied that the Registrant had waived her right to be present at the hearing by her clear indication that she would not be attending. The Panel could see no reason to adjourn the hearing in order to allow the Registrant to attend on a later date because there was no indication that she would attend on any other occasion. The Panel took into account the fact that it had identified there to be a continuing risk to the public if the Registrant were allowed to practise without restriction and decided it would not be unfair to consider the Interim Order Application in the absence of the Registrant.
3. The Panel has found that the Registrant failed to keep appropriate records for patients over a period of eight years or more and proactively concealed that fact from her employers. The Panel had concluded that the Registrant represents a continuing risk to the public because there remains a concern that she would repeat the behaviour in the absence of any evidence to the contrary. Although she has indicated that she has retired and has no intention of returning to practice, it is always possible that she could change her mind. The Panel therefore concluded that an Interim Order was necessary to protect the public from the risks it had identified during the 28 day appeal period, or the time taken to conduct any appeal, in the event that one is made.
4. The Panel is also of the view that, given the nature and seriousness of the misconduct in this case, public confidence in the regulatory process would be undermined if the Registrant were allowed to remain in practice on an unrestricted basis. The Panel therefore determined that an Interim Order is otherwise in the public interest.
5. The Panel first considered whether a Conditions of Practice Order would be sufficient. However, for the same reasons as dealt with at the sanction stage, the Panel concluded that conditions would not be appropriate. This was because there was no indication that the Registrant would engage with any conditions, given her current retired status and her indication that she does not intend to return to practice.
6. The Panel therefore decided to make an Interim Suspension Order for a period of 18 months 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.
History of Hearings for Miss Maryanne Doreen Elliott
|Date||Panel||Hearing type||Outcomes / Status|
|01/10/2018||Conduct and Competence Committee||Final Hearing||Struck off|