Mrs Susan Leech

Profession: Chiropodist / podiatrist

Registration Number: CH17977

Hearing Type: Final Hearing

Date and Time of hearing: 09:00 10/09/2018 End: 16:00 12/09/2018

Location: Health and Care Professions Tribunal Service (HCPTS), 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

Allegation as amended at Substantive Hearing:


Whilst registered as a Chiropodist / Podiatrist, you:


1. Provided receipts for treatment to Patient A which were signed by you and/or included your registration number regarding treatment provided on some or all of the occasions listed in Schedule A.


2. Your actions at 1 above gave the impression that you had treated Patient A.


3. During a telephone conversation with an employee of Simply Health on 19 October 2016 you claimed that only four treatments had been provided to Patient A by a colleague rather than yourself.


4. During a telephone conversation with an employee of Simply Health on 17 August 2016 you stated that you ordinarily provided treatment to Patient A.


5. Between 30 August 2011 and 17 August 2016 you did not ensure Patient A’s records were stored securely.


6. Your actions described at paragraphs 1-5 were dishonest


6. The matters set out in paragraph 1 - 6 constitute misconduct and/or lack of competence.


7. By reason of your misconduct and/or lack of competence your fitness to practise is impaired.

Finding

Preliminary Matters

Service


1. The Panel was aware that written notice of these proceedings was posted by first class post to the Registrant at her registered address on 28 June 2018. Notice was also given by email. The Panel was shown documents which established the fact of the service, the identity of the Registrant’s registered address and of her email address. . In these circumstances the Panel accepted that proper service of the Notice had been effected.


Proceeding in the absence of the Registrant


2. Ms Ryan on behalf of the HCPC submitted that the hearing should proceed in the absence of the Registrant. She informed the Panel that the Registrant had completed the formal “Pre Hearing Information Form” and had returned that form to Kingsley Napley in April 2018. In that form the Registrant stated that she would not be present or represented at this hearing. She also stated that she had sent in writing “admissions, witness statements and evidence bundle to be considered by the Panel”. The Panel has seen the Pre-Hearing Information Form.


3. The Panel heard and accepted the advice of the Legal Assessor.


4. The Panel was aware of the need to consider the application to proceed in the absence of the Registrant with great caution. The Panel has decided to allow the application. Its reasons are as follows;


• Notice of this hearing has been properly served on the Registrant.
• The Registrant has not applied for an adjournment.
• The Panel has considered the Practice Note, which is relevant to proceeding in the absence of a Registrant.
• The Registrant has stated that she does not intend to attend or be represented at this hearing.
• There is a public interest in disposing of this matter as soon as can properly and fairly be done. The allegations date back to 2016.
• The Panel has received a written statement from the Registrant which clearly sets out her position.
• In all the circumstances the Panel has determined that the registrant has waived her right to attend.
• There were two witnesses in attendance.


Application to amend the Allegation


5. Ms Ryan applied to amend the Allegation in the terms that were set out in a letter sent to the Registrant and dated 23 November 2017. She submitted that the amendments to the Allegation better reflected the evidence that was to be called. The Registrant has not opposed the application. Indeed in her formal response to the Particulars of the Allegation, she used the text of the  amended Allegation as the basis for her response. Having received the advice of the Legal Assessor, the Panel concluded that the amendments could be made without injustice to the Registrant. It determined that the Allegation should be amended in the terms sought by Ms Ryan.


The Registrant’s position as regards the Particulars in the amended Allegation.


6. The Panel has seen the written admissions submitted by the Registrant. In that document the Registrant admits particulars 1-5 of the amended Allegation. As to Particular 6 [dishonesty] she admitted the allegation insofar as it relates to Particular 4 but not insofar as it relates to Particulars 1,2 and 3. She admits Particulars 7 and 8 but made no distinction as between the allegation of “misconduct and/or lack of competence”.


Procedure


7. The Panel decided to consider the facts, misconduct and impairment as a single stage and then, if appropriate, to consider sanction separately.


Background as outlined to the Panel by Ms Ryan


8. The Registrant is a Chiropodist/Podiatrist registered as such with the HCPC. She is the Director of SLA Healthcare Ltd (SLAH Ltd). In that capacity she entered into an agreement with a Foot Health Practitioner (referred to as “Colleague A”). Colleague A is self employed and is not registered with the HCPC.

 
9. The Allegation in this case concerns claims made by Patient A to Simply Health (SH) for chiropody treatment received by Patient A. SH is a company which offers health plans to assist its customers (in this case Patient A) with the funding of clinical treatment. The customer (in this case Patient A) is provided with “terms and conditions” by SH which state that they will not pay for treatment by someone who is not registered with the HCPC. The Panel noted the evidence of Witness 1 that the terms and conditions are not supplied to the healthcare provider (in this case SLAH Ltd).


10. On 17 August 2016 a claims advisor employed by SH received  a claim via the telephone claims service from Patient A. The claim was in respect of treatment provided by Colleague A. When the claims advisor checked, he/she was unable to find the individual (Colleague A) who treated Patient A on the HCPC Register. Patient A indicated to the claims advisor employed by SH that as SH had paid for this person (Colleague A) on a previous occasion, she couldn’t understand why payment was on this occasion declined.


11. The claims advisor noted that the receipts submitted previously had the name of the treatment provider, as being the Registrant. This was the reason why previous claims had been paid.


12. The matter was passed to the Audit and Investigations Team in the person of Witness 1. She telephoned the Registrant on 17 August 2016 at 12.41. In the ensuing conversation, the Registrant told Witness 1, that she normally treated Patient A but on that occasion she had been unwell, and a colleague had treated Patient A. SH accepted that explanation and made the payment to Patient A.  


13. On 11 October 2016, Patient A contacted SH again to ask why SH would not accept her claims for treatment.  On 12 October 2016 at 10.59 Witness 1 contacted the Registrant by telephone and asked why she thought that Patient A had stated that she was receiving regular treatment from Colleague A. The Registrant said that she did not have her notes to hand but would get them and contact SH with the treatment dates.


14. On 19 October 2016 at 12.41, the Registrant informed Witness 1  on the telephone, that her colleague (Colleague A) had treated Patient A on the following four occasions; 1 February 2016, 2 November 2015, 14 September 2015 and 1 June 2015.  


15. The records maintained at SH confirmed that on the following three occasions listed below, receipts for the claims  were submitted to SH in respect of the treatment given to Patient A. These were signed by the Registrant herself with no reference to Colleague A. Such details as were provided in the receipts related exclusively to SLAH Ltd. The HCPC case is that the Registrant thereby gave the impression that she herself and not Colleague A had provided the treatment to Patient A. Patient A, was thereby enabled to receive a refund from SH in respect of the treatment provided by Colleague A. The following are the dates referred to; 1 February 2016, 2 November 2015 and 14 September 2015.


16. The Registrant again telephoned SH on 21 October 16 at 14.26 hrs. She spoke to Witness 1. The Registrant  maintained it was Colleague A who provided the treatment to Patient A on four occasions but that in her mind Patient A was her patient - that is to say the patient of the Registrant.  She was advised that the matter was being referred to the HCPC. The Registrant’s offer of a refund, payable to SH, was not accepted.


17. Colleague A had signed a contract with SLAH LTD on 28 Sept 2010. Colleague A was an independent contractor, not an employee of SLAH Ltd. Under the terms of the contract, Colleague A retained 80% of the fees received from the patient and paid 20% to SLAH Ltd.


18. Colleague A began treating Patient A on 21 July 2011. She then saw her every 6-7 weeks. Colleague A kept paper records which indicate that she saw Patient A on 44 occasions between 21 July 2011 – 29 Sept 2016. As far as Colleague A recalls, the Registrant never treated Patient A.


19. In the autumn of 2016, the Registrant asked Colleague A to provide her with the treatment records for Patient A. These were were provided and Colleague A kept a copy. The Registrant subsequently provided a timeline of events in which she indicated that she had lost the patient records.  She asserted that she had put them somewhere safe, but now could not find them. 

   
20. Colleague A’s contract with SLA Ltd indicated that the Registrant would provide receipts for any treatment that Colleague A provided to patients who were on SLAH Ltd’s list of patients; those receipts would be provided to Colleague A in advance of any such treatment that she might give.


A summary of the evidence and other material before the Panel


21. The HCPC relied on the following witnesses:


a. Witness 1. She is an Audit and Investigation technician in the Fraud Department of SH.
b. Colleague A.
c. Witness 2. She is a trainee solicitor in the employment of Kingsley Napley.


22. All the above witnesses  have made written statements which the Panel has read. Witness 1 and Colleague A also gave oral evidence to the Panel.


 In addition to the oral and written evidence identified above, the HCPC produced and relied upon a bundle of documents.

This bundle included the following documents;


• The Fitness to Practise Referral form dated 01 November 2016.
• The Registrant’s Chronology of events.
• A letter from the Registrant dated 17 November 2015.
• A table documenting the claims made by Patient A.
• SH Claim forms
• Patient A’s receipts as issued by SLAH Ltd.
• A file note recording a conversation between the HCPC and Witness 1 on 29 June 2017 regarding a letter and cheque that SH had received from the Registrant.
• Redacted Patient Records.
• A letter from SLAH Ltd dated 24 June 2016  enclosing a cheque.
• SH’s Terms and Conditions.
• Correspondence with Patient A.


23. The HCPC also produced recordings of the telephone conversations between the Registrant and Witness 1 on 12 October 2016, 19 October 2016 and 21 October 2016. These recordings were played to the Panel. There was no transcript of those recordings at the time that recordings were played. They became available on 11 September 2018 at the request of the Panel.


24. Witness 1 gave evidence and responded to questions. In summary, she confirmed the contents of the written statement, which she had made on 12 January 2018 and which confirmed the substance of the conversations which are set out in Particulars 3 and 4 of the amended Allegation. She also described the conversation she had with the Registrant 12 October 2016. She gave a detailed account of all her dealings with the Registrant.  She set out the information that she had received from the claims advisor as to the conversations that the claims advisor had had with Patient A. She produced many of the documents that are contained in the bundle of documents produced by the HCPC. She further described the basis on which SH helps to fund the health costs incurred by their (SH’s) customers.


25. The Panel found Witness 1 to be a highly credible witness whose evidence the Panel found to be very persuasive. In the opinion of the Panel, Witness 1 was an experienced and honest witness whose opinions were backed by detailed explanations. The oral evidence that she gave was wholly consistent with her written statement. In short, the Panel found Witness 1 to be an excellent witness whose evidence the Panel accepted.


26. Colleague A gave oral evidence. In summary, her oral evidence reflected but did not greatly add to the contents of her written statement dated 07 December 2017. She described her relations with both Patient A and with SLAH Ltd. She said that she had provided all the treatment to Patient A that is recorded in the documentation before the Panel. She did not think that the Registrant had herself provided any actual treatment, though she described Patient A as being a “patient” of the Registrant. She said that between 21 July 2011 and 29 September 2016 she had provided treatment to Patient A on 44 occasions. She said that she herself was not registered with the HCPC and that her status was that of a self employed contractor and not an employee of SLAH Ltd. She described the contract that she had with SLAH Ltd. She had entered into this on 28 September 2010. Under that contract, SLAH Ltd would provide her with a list of patients, she (Colleague A) would provide the treatment to the patients. SLAH Ltd would provide the necessary receipts. SLAH Ltd would receive 20% of the fee with the balance of 80% being retained by Colleague A. Colleague A was unable to explain why  Patient A was to be treated as a patient of SLAH Ltd when all the treatment was provided by her and when SLAH Ltd provided no services in respect of Patient A other than to issue the receipts. She said that Patient A had approached her direct and had not been introduced to her by SLAH Ltd.


27. The Panel regard the evidence given by Colleague A as being somewhat selective and on occasion evasive. The Panel did not think that Colleague A had been wholly candid with the Panel. The Panel noted that Colleague A was unable to give any clear explanation as to why she regarded Patient A as being a patient of the Registrant. She told the Panel that Patient A had approached her direct, that she had provided all the treatment that Patient A had received. Other than the provision of receipts the Panel could not identify any involvement of the Registrant in the treatment of Patient A. However the Registrant through SLAH Ltd did receive 20% of the fees paid by Patient A. The Panel had in mind that subsequently Patient A recovered part of the fees charged by SLAH Ltd from SH.


28. The written evidence of Witness 2 was procedural in character and did not assist with the substance of the matters which the panel had to consider.  


The Registrant’s evidence as to the factual allegations and as to Misconduct and Impairment.


29. The Panel has read all the documents comprised within the bundle submitted by the Registrant. These included;


• the Registrant’s response dated 17 April 2018 to the Particulars set out in the amended Allegation. This was a formal statement of admission and denials.


• A four-page statement from the Registrant dated 17 April 2018.


• Recent character references in support of the Registrant.


• A letter dated 28 October 2016 to a patient informing him of her intention to retire from practice.


• Other documents.


30. The Panel has read the statement dated 17 April 2018 from the Registrant which explains the basis on which the admissions set out above, were made. In that document the Registrant explains the circumstances in which she acted in the way in which she did. She also described her intentions for the future and in particular her decision to retire from clinical practice and to confine herself to the administrative side of the business. The Panel also took into account the recordings of the conversations with Witness 1 which are identified above. The Panel was very conscious that it had not seen the Registrant and as a consequence none of the assertions that are contained in her written responses were tested by questioning.


Submissions made by Ms Ryan as to facts, Misconduct  and Impairment.


31. Ms Ryan made submissions as to the facts, Misconduct and Impairment. In summary she submitted as follows;


• As regards Particulars 1- 4 and 6; the facts were proved by the admissions of the Registrant, by the documents that had been produced and by the evidence of Colleague A. Ms Ryan submitted there was a clear intention on the part of the Registrant to deceive SH into believing that she herself had provided all or most of the treatment for Patient A when she knew that all the treatment had in fact been provided by Colleague A . She further submitted that in her telephone conversations with Witness 1, the Registrant had sought to conceal the extent of the deception.


• As regards Particular 5 the HCPC relied on the evidence of Colleague A and also on the evidence of the Registrant that though in her possession, the patient records could not be found.


•  As regards Misconduct and lack of competence, Ms Ryan submitted that the case should be viewed as one of Misconduct rather than lack of competence. She submitted that the dishonesty, if established, was a sufficiently serious departure from the appropriate standards of conduct to be expected of the Registrant, as to amount to Misconduct.


• As regards current Impairment; Ms Ryan submitted that the risk of repetition could not be excluded and further that public confidence in the profession, in its regulator and the need to maintain proper standards within the profession, would all be undermined, if there was not a finding of current impairment.


• The Panel kept well in mind all the representations and admissions made by the Registrant as set above. The Panel noted the steps that the Registrant had taken to improve her processes and procedures. The Panel also noted the Registrant’s expressions of remorse, shame and contrition.


• The Panel heard and accepted the advice of the Legal Assessor as to facts, Misconduct and Impairment.


• The Panel was aware that on matters of fact the burden of proof rests on the HCPC and that the standard of proof is the civil one, namely on the balance of probabilities.


Decision on facts


32. Having considered all the evidence that it has heard and read, together with all the submissions  and representations that have been made, the Panel found Particulars 1,2, 3 and 4 and 6 (insofar as 6 relates to 1, 2, 3, and 4) in the  amended Allegation proved. The Panel did not find Particular 5 proved.


33. With regard to Particular 1 of the amended Allegation; the Panel was satisfied that the HCPC had discharged the burden of proof. In coming to this conclusion the Panel noted the documents that had been submitted by the HCPC and in particular the patient records and the receipts that were included in the Bundle before the Panel. The Panel also relied on the admission made by the Registrant.


34. With regard to Particular 2 of the amended Allegation; the Panel was satisfied that the HCPC had discharged the burden of proof. The Panel noted the admission made by the Registrant. The Panel also came to the conclusion that the likely interpretation of the Registrant’s actions and of the relevant documents, was that they gave the impression that is alleged in the Particular.


35. With regard to Particular 3 of the amended Allegation; the Panel was satisfied that the HCPC had discharged the burden of proof. In coming to this conclusion the Panel accepted the evidence of Witness 1. It also took into account the admission made by the Registrant, which was consistent with the evidence of Witness 1.


36. With regard to Particular 4 of the amended Allegation; the Panel was satisfied that the HCPC had discharged the burden of proof. In coming to this conclusion the Panel accepted the evidence of Witness 1. The Panel noted the documentary evidence and in particular the three receipts. The Panel noted the admission made by the Registrant. The Panel also concluded that all of this evidence was corroborated by the recording of the telephone conversation between Witness 1 and the Registrant which took place on 19 October 2016.


37. With regard to Particular 5 of the amended Allegation; the Panel did not find that there was sufficient evidence to support the allegation in this Particular. Accordingly and notwithstanding the admission made by the Registrant, the Panel did not find this Particular proved.


38. With regard to Particular 6 of the amended Allegation; the Panel found this allegation not proved insofar as it relates to Particular 5 but proved in relation to particulars 1, 2, 3 and 4. In coming to this conclusion the Panel took into account the findings of fact previously recorded. With regard to Particulars 1 and 2; the Panel determined that the Registrant knowingly and deliberately sought to mislead others into believing that she herself had provided all the treatment received by Patient A. With regard to Particulars 3 and 4, the Panel concluded that the Registrant was deliberately seeking to conceal the fact that Colleague A was responsible for all the treatment provided to Patient A. In the opinion of the Panel the explanation given by the Registrant was knowingly and deliberately misleading. The Panel therefore concluded that the HCPC had discharged the burden of proof in respect of the Particulars identified.  


Decision on Misconduct and Impairment


39. The Panel took into account the submissions on both points made by Ms Ryan on behalf of the HCPC and the written representations of the Registrant.


40. The Panel was aware that findings as to Misconduct and Impairment, were matters for the independent judgement of the Panel and that, in respect of both issues, there was no burden or standard of proof.


41. The Panel determined that having regard to the guidance given by the courts in the relevant authorities, the facts that have been found proved as regards Particulars 1,2,3 and 4 are sufficiently serious as to amount to misconduct. Its reasons are as follows;


• The Registrant acted in a manner which she knew was dishonest. By her actions as set out in Particular 1 she sought to mislead others into believing that she had provided all the treatment that had been given to Patient A.  Also in her telephone conversations with Witness 1 as identified in Particulars 3 and 4 of the amended Allegation, she deliberately and knowingly made untrue statements with intent to deceive.


• The matters found proved were not isolated events, but were repeated over many months and amounted to a pattern of conduct.


• Such conduct was a serious departure from the standard of behaviour to be expected of a Chiropodist registered with the HCPC.


41. Having determined that the Registrant’s conduct as found proved amounted to Misconduct, the Panel proceeded to consider whether the Registrant’s fitness to practise is thereby impaired. The Panel is aware that what is to be assessed is the Registrant’s current fitness to practise.


42. In considering this issue the Panel considered and applied the principles stated by Mrs Justice Cox in the case of the Council for Healthcare Regulatory Excellence v Nursing and Midwifery Council; Paula Grant [2011] EWHC 927 [Admin]. In particular, the Panel considered whether there was a risk that the Registrant would in the future act in a way similar to that found proved. The Panel also considered whether public confidence in the profession, in the HCPC as its regulator and the need to maintain proper standards of conduct, would be prejudiced, if a finding of current impairment was not made.


43. The Panel concluded that the Registrant’s current fitness to practise was impaired by reason of the facts that have been found proved. The Panel concluded that the risk of repetition could not be wholly excluded. In coming to this conclusion, the Panel was disturbed by the significant lack of insight that the Registrant has displayed as regards her misconduct. In addition the Registrant refuses to acknowledge the full extent of her dishonesty.  Moreover the Panel concluded that public confidence in the profession, in the HCPC as its regulator and in the need to maintain proper standards within the profession, would be undermined if a finding of impairment was not made. In coming to this conclusion, the Panel had in mind the need for all health care professionals, in their dealings with patients, service providers and insurance companies, to display at all times, a very high standard of personal honesty and integrity.  This the Registrant had failed to do. Her behaviour is a very serious departure from those standards; a departure, which moreover, she has failed to acknowledge in full. The Panel has come to the conclusion that the need to maintain the public confidence as stated above, requires a finding of present impairment to the Registrant’s fitness to practise.


Decision on Sanction


44. Having concluded that the Registrant’s fitness to practise is impaired, the Panel proceeded to consider what, if any, Order is both appropriate and proportionate, in order to protect the public and to safeguard the public interest.


45. The Panel has considered all the submissions and evidence that it has heard and read. It has accepted the advice of the Legal Assessor.


46. The Panel took into account the principles of proportionality, balancing the interests of the Registrant with the public interest.


47. The Panel has had regard to the contents of the Indicative Sanctions Policy published by the HCPC on 22 March 2017. The Panel is aware that sanctions should be considered in ascending order of severity. The Panel is aware that the purpose of sanctions is not to be punitive but to protect members of the public and to safeguard the public interest. The latter objective includes maintaining standards within the profession, together with public confidence in the profession and in its regulatory processes.


48. The Panel took into account all the relevant factors. It noted the Registrant’s expressions of remorse and contrition. It took into account the fact that except for these matters, the Registrant has had a long and unblemished career. The Panel noted that the Registrant has admitted some of her dishonesty. The Panel further noted the steps that the Registrant had taken to improve the manner in which her business was conducted and that she had apparently retired from clinical practice.


49. However the Panel also took into account that the Registrant had not acknowledged the full extent of her dishonesty. Her insight into her misconduct could not be regarded as complete. She has shown a readiness to downplay the gravity of her actions, emphasising misconduct rather than dishonesty. Moreover the misconduct was systematic in character, repeated and committed over many months.


50.  The Panel has concluded that to take no action would be wrong. Such an outcome would be inappropriate having regard to the facts of the case. It would not serve to maintain public confidence in the profession or in the HCPC as its regulator.


51. The Panel  considered making a Caution Order but concluded that such an outcome would not be appropriate. It would not provide effective protection to the public and would not sufficiently mark the gravity of the Registrant’s misconduct.


52. The Panel next considered making a Conditions of Practice Order. It concluded that appropriate Conditions could not be formulated. In coming to this conclusion, the Panel kept in mind that the Registrant was self employed and that she has said that she has retired from clinical practice. Moreover much of the misconduct was attitudinal in character and as such Conditions are inappropriate. 


53. The Panel concluded that a Suspension order for a period of 12 months was the appropriate Order for this Panel to make. It would provide effective protection to the public. It would mark the gravity of the Registrant’s misconduct and therefore would help to sustain public confidence in the profession and in its regulator. It would also help to maintain proper standards in the profession. Moreover such an Order would enable to Registrant to address her failings and, if she wished, to demonstrate that she could safely and properly resume her professional career. The Panel determined that any period of less than 12 months would be insufficient a period in which to achieve these objectives.


54. The Panel concluded that a Striking Off Order was at at this stage both unnecessary and disproportionate.


55. This Order will be reviewed before it expires. The panel that reviews this Order may be assisted by the following;
• The personal attendance of the Registrant.
• Evidence from the Registrant as to what she has learnt from these proceedings and the steps that she has taken to ensure such misconduct would never happen again.
• How she would in the future, organise her business operations, so as to avoid a repetition of the matters found proved.
• Evidence from between the date of this Order and the review of this Order, as to her honesty and integrity.

Order

ORDER: That the Registrar is directed to suspend the registration of Mrs Susan J Leech for a period of 12 months from the date this order comes into effect.

Notes

A hearing was held in London from 10-11 September 2018 in which a Suspension Order was imposed.

Hearing History

History of Hearings for Mrs Susan Leech

Date Panel Hearing type Outcomes / Status
10/09/2018 Conduct and Competence Committee Final Hearing Suspended