Alexandra Claire Burns

Profession: Physiotherapist

Registration Number: PH70215

Interim Order: Imposed on 25 Nov 2016

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 16/08/2019 End: 12:00 16/08/2019

Location: Health and Care Professions Council, 405 Kennington Road, London, SE11 4PT

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

As Proven at the final hearing on 20 August 2018:

 

While registered as a Physiotherapist with the Health and Care Professions Council:
1. You were unable to undertake your professional duties as you were under the influence of alcohol, on the following dates:
a) On 4 December 2015, at Milton Keynes University Hospital.
b) On 22 January 2016, at Peterborough City Hospital.
c) On 4 October 2016, at Kettering General Hospital.
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
Service
1. The Hearing Officer provided the Panel with details of service of the Notice of Hearing and bundle upon the Registrant.

2. The Panel was satisfied that the Registrant was notified of the date and time of the hearing via a letter dated 17 July 2019 (the “Notice of Hearing”) which was sent by first class post to her registered address and to her email address. Neither communication had been returned as undeliverable and the Registrant had subsequently communicated with the HCPC on several occasions in relation to the hearing. Accordingly the Panel found that the HCPC had discharged its duty to serve documentation on the Registrant in accordance with the Health and Social Work Professions Order 2001 (the Order).

Application for an Adjournment
3. The Registrant had, by an email dated 15 August 2019 to the HCPTS, requested that the hearing be adjourned to enable her to obtain information from her General Practitioner and Practice Nurse. She provided a timeline of her engagement with them as well as her communications with the HCPC from June 2019.

4. The Presenting Officer submitted that the original panel hearing this matter had set out in its decision the information that would assist a future reviewing panel and therefore the Registrant was aware of what she needed to provide. Further, the Presenting Officer had confirmed this information during a telephone conversation with the Registrant on 14 June 2019, and had sent a further copy of the substantive panel decision to the Registrant by email at the end of the conversation.  The Presenting Officer believed that the Registrant had had sufficient time and information to prepare for the hearing and that no unfairness would be caused if the hearing were to proceed. She reminded the Panel that the Suspension Order was due to expire on 18 September 2019 and that there was no guarantee that, if the adjournment request was granted, the matter could be re-listed prior to that date. She submitted that it was in the public interest for the request to be rejected and the review undertaken.

5. The Panel asked the Presenting Officer to provide copies of email communications, as well as file notes of telephone conversations between the Registrant and HCPC employees, including the Presenting Officer. The Panel received legal advice from the Legal Assessor and had regard to the practice note issued by the HCPTS entitled ‘Postponement and Adjournment of Proceedings’.

6. Having carefully considered all of the information provided to it, the Panel decided not to grant the request for an adjournment. There is a statutory obligation on the Panel to conduct fitness to practise proceedings expeditiously and it is in the interest of all parties, and the wider public interest, that matters are resolved in a timely fashion. There is an expectation that when a time and venue for a hearing have been set, panels should always aim to proceed as scheduled, therefore parties should too. Adjournments could be agreed when there were good and compelling reasons to do so and failing to do so may create an injustice. In this instance, the Registrant was informed by the substantive panel what information would assist a reviewing panel. She spoke at length with the Presenting Officer on 14 June 2019, when she was reminded of the findings of the substantive panel and the review process was explained to her in detail. Despite a number of medical appointments between 21 June 2019 and 6 August 2019, the Registrant had not provided any information in relation to these or any other documentation which may assist the Panel.

7. The primary reason for the adjournment request was to allow the Registrant to attend her GP and Practice Nurse appointment on 18 August 2019, and to provide supporting documentation to the Panel.  The Panel noted this, but considered that this was only one part of the information that would be helpful to it as part of the review. The Registrant was not in attendance and the Panel acknowledged her ability to present her case was to some extent compromised; however, taking into account the information provided regarding the previous medical appointments and the lack of any documentation about them, together with the lack of any other supporting information for this review, the Panel rejected the request for an adjournment.

Proceeding in Absence of the Registrant
8. The Presenting Officer submitted that it was in the public interest for the hearing to proceed in the absence of the Registrant. She outlined the chronology of the matter. The Presenting Officer invited the Panel to exercise its discretion to proceed with the case in the absence of the Registrant, stating that the Panel had already found good service and the Registrant was clearly aware of the proceedings given that she had requested it be adjourned.

9. The Panel noted the provisions of the HCPTS practice note in respect of Proceeding in the Absence of the Registrant, and took account of the advice provided by the Legal Assessor. The Registrant had been offered the opportunity to attend via video link or telephone but declined. The Registrant had not indicated any desire to be represented at the hearing. Included in the Notice of Hearing was confirmation that the hearing could proceed in the absence of the Registrant, and therefore   she was on notice that the hearing could proceed.

10. The Panel acknowledged that proceeding in absence may disadvantage the Registrant, however, since the Panel was satisfied that she was aware of the hearing and that it could still proceed in her absence, the Panel concluded that the Registrant had chosen to voluntarily absent herself. The Registrant did not provide any submissions to the Panel – for example she could have provided information as to her current circumstances and employment, and a reflective piece in relation to the failings identified by the substantive panel. The Panel considered that the public interest in proceeding outweighed any potential prejudice which may be suffered by the Registrant.

Background
11. The Registrant is a registered Physiotherapist who was employed as a locum at three hospitals – Milton Keynes University Hospital, Peterborough City Hospital and Kettering General Hospital. On three separate occasions between December 2015 and October 2016 the Registrant was unable to undertake scheduled work as she was under the influence of alcohol.

12. Following a hearing of the Conduct and Competence Committee on 20 – 21 August 2018, which was not attended by the Registrant, a number of Particulars alleged were held to be well-founded as set out above, and to amount to misconduct. The Registrant’s fitness to practise was assessed as being impaired on both the personal and public components. A Suspension Order was imposed by that panel, of which this is the first mandatory review. That panel also indicated that a reviewing panel may be assisted by:
-   engagement by the Registrant;
-   a reflective piece from the Registrant regarding the impact of her misconduct on patients and colleagues;
-  any relevant information about the registrant’s health and wellbeing;
-  any relevant information as to professional development;
-  any relevant reference or testimonials in relation to paid or unpaid work;

13. As well as being provided with the bundle of documents submitted by the HCPC for the review hearing, the Registrant was contacted by the Presenting Officer in June 2019 via email in respect of the hearing following a detailed telephone conversation. 

Decision 
14. The Presenting Officer reminded the Panel that it could not go behind the original findings but was tasked with assessing whether the Registrant was currently impaired, and what, if any, sanction is appropriate. The HCPC’s position was that a Suspension Order remained appropriate. The Presenting Officer submitted that whilst the Registrant was now engaging with her Regulator, the Panel had no evidence as to whether the Registrant had any insight into her misconduct or what remediation she had undertaken and therefore the risk of repetition was ongoing.

15. The Panel heard the submissions made by the Presenting Officer, and considered all of the documentation before it. The Panel accepted and applied the advice of the Legal Assessor in relation to the proper approach to determining this matter. It also had regard to the following practice notes adopted by HCPTS:
• Review of Article 30 Sanction Orders;
• Unrepresented Registrants;
• Finding that Fitness to Practice is Impaired;
• Drafting Decisions.
 
16. The Panel reminded itself that Suspension Orders are imposed only when there is either a serious and on-going risk to service users or the public from the Registrant’s lack of professional knowledge or skills, conduct or unmanaged health problems, or the allegation is so serious that public confidence in the profession or the regulatory process would be seriously harmed if the Registrant was allowed to remain in practice. The review process is to consider whether the Registrant’s fitness to practise remains impaired and if so, whether the existing order or another order needs to be in place to protect the public. The key issue which needs to be addressed is what, if anything, has changed since the current order was imposed.  The factors to be taken into account include:
• the steps which the Registrant has taken to address any specific failings or other issues identified in the previous decision;
• the degree of insight shown and whether this has changed;
• the steps which the Registrant has taken to maintain or improve her professional knowledge and skills;
• whether any other fitness to practise issues have arisen;
• whether the Registrant has complied with the existing order. 

17. The decision in Abrahaem v GMC [2008] EWHC 183 (Admin) indicates, in practical terms this places a “persuasive burden” on the Registrant to demonstrate at a review hearing that she has fully acknowledged the issues which led to the original finding and has addressed them sufficiently “through insight, application, education, supervision or other achievement...”.

18. The Panel reminded itself that when reviewing sanctions under Article 30 of the Order, the reviewing panel may:
• confirm the order;
• extend, or further extend, the duration of the order; 
• reduce the duration of the order;
• replace the order with any other order which the Panel could have made (to run for the remaining term of the original order); or
• revoke the order or revoke or vary any condition imposed by it.

19. The decision reached by the Panel must be proportionate, striking a fair balance between interfering with the Registrant’s ability to practise and the overarching objective of public protection. Of particular relevance to the Panel is whether the concerns raised in the original finding of impairment had been sufficiently addressed, with the burden on the Registrant to demonstrate that she has fully acknowledged the misconduct which led to the original finding and has addressed that impairment sufficiently.

20. The Panel noted that the Registrant was now engaging with the HCPC and seemed to be attempting to arrange for additional information to be provided in relation to her circumstances. It did consider that the failings identified were capable of remediation, however it did not consider that the limited information provided to it demonstrated that the risks identified by the Substantive Panel were reduced sufficiently to remove the need for an order. The Registrant had communicated with the HCPC in relation to the adjournment of the hearing, however she had not attended the review hearing or made submissions to the Panel, despite the substantive panel helpfully outlining information which would be of assistance. 

21. Having conducted an assessment of the risks identified in this matter, the Panel was satisfied that the Registrant continues to pose a risk to the public if she was allowed to return to unrestricted practice at this point. Although she had informed the HCPC during a telephone conversation on 14 June 2019 that she was “doing better” and that “the issues have been addressed”, there was little evidence of insight into the failings identified, or any evidence as to what steps she had taken to remediate her conduct. Accordingly a reasonable and well-informed member of the public would be concerned if no action was taken to restrict the Registrant’s practice - public confidence in the profession and the regulatory process would be seriously undermined given the nature and gravity of the Registrant’s misconduct. 

22. The Panel was satisfied that the Registrant remained impaired on both the personal and public component and it therefore went on to consider what, if any, Order was necessary and proportionate with regard to the protection of the public and in the wider public interest. Given the serious nature of the misconduct identified and the ongoing risks posed, it would be inappropriate to take no further action or issue a Caution to the Registrant.

23. Having found that the Registrant’s conduct was capable of remediation, the Panel gave careful consideration to the imposition of a Conditions of Practice Order, given that the Registrant was now engaging with the regulator. However, on the limited information available, the Panel did not consider that an adequate level of pubic protection could be achieved through the imposition of a Conditions of Practice Order at this time. Further, the Registrant had indicated that she had no desire to return to practice. The Panel concluded that conditions would be insufficient to address the issue of trust and confidence in the profession and the requirement to uphold the integrity of the regulatory process. However, a Conditions of Practice Order may be appropriate in the event that the Registrant does wish to return to practice and provides information as to the level of her insight, remorse and remediation.

24. The Suspension Order imposed in August 2018 was appropriate to try to facilitate the Registrant’s return to the profession, given that the misconduct was serious but capable of being remediated. The Panel noted that given the current lack of insight, remorse and remediation, it may be now be appropriate to consider a Striking Off Order. However, it considered that this would be excessive as the Registrant had now started to engage. A Suspension Order was therefore appropriate and proportionate. It was unfortunate that the Registrant had not allowed herself sufficient time to obtain the information requested for this review hearing, however the Panel considered that a short period of further suspension would allow the Registrant to supply this further information to enable a reviewing panel to undertake a comprehensive review.  The Panel had regard to the impact a further Suspension Order would have on the Registrant but concluded that her interests were outweighed by the Panel’s duty to give priority to the public interest and maintain confidence in the regulator. It was satisfied that no lesser sanction would be appropriate in the particular circumstances of this case.

25. The Panel would encourage the Registrant to provide the next reviewing panel, in good time, with information in respect of:
• Evidence of her ongoing engagement with the HCPC including attending the next review hearing, in person or by telephone;
• Her reflections on the impact of her misconduct on patients and colleagues;
• Evidence about her health and wellbeing;
• Evidence of continuing professional development;
• Relevant current references or testimonials in relation to paid or unpaid work.

26. The Panel decided that the appropriate and proportionate order is a Suspension Order for a period of 4 months.

Order

The Registrar is directed to suspend the registration of Miss Alexandra Claire Burns for a further period of 4 months on the expiry of the existing order. 

Notes

The Order imposed today will apply from 18 September 2019.
This Order will be reviewed again before its expiry on 18 January 2020.

Hearing History

History of Hearings for Alexandra Claire Burns

Date Panel Hearing type Outcomes / Status
16/08/2019 Conduct and Competence Committee Review Hearing Suspended
20/08/2018 Conduct and Competence Committee Final Hearing Suspended