Mr Kieran Mcdermott

1. On the final day of the Substantive Final Hearing, 16 June 2017, a Panel of the Conduct and Competence Committee determined that 46 particulars were proved, that the proved facts constituted a lack of competence, that the Registrant’s fitness to practise remained impaired, and that the appropriate sanction was a Suspension Order for a period of twelve months.

2. The Registrant appealed against that decision by way of application to the High Court. The appeal in respect of sanction was allowed. Yip J ordered that:

“1. Grounds 1, 2, and 3 of the appeal are dismissed. For the avoidance of doubt there shall stand the findings of the Respondent’s Conduct and Competence Committee (“the Committee”) in its decision the subject of the appeal, in relation to the charges proven, the Appellant’s lack of competence, and the impairment of the Appellant’s fitness to practise.

 2. Ground 4 of the appeal is allowed to the extent indicated in the Respondent’s Conduct and Competence Committee (“the New Panel”) to be disposed of in accordance with the direction in paragraph 4 below.

 3. The case shall be remitted to a freshly constituted panel of the Respondent’s Conduct and Competence Committee (“the New Panel”) to be disposed of in accordance with the direction in paragraph 4.

 4. The New Panel shall impose a Conditions of Practice Order on the Appellant with such terms and for such length as it sees fit”.

3. The reconstituted Final Hearing Panel, the ‘New Panel’, sat on the 22 January 2018. It determined the terms and length of the Conditions of Practice Order, in accordance with the Order of Yip J. In that decision the previous Final Hearing Panel who made the determination on 16 June 2017, was referred to as the “2017 Panel”.

4. The Summary recorded at the hearing of the New Panel on 22 January 2018 was:

‘The Registrant qualified in 2009 and joined the University Hospitals Birmingham NHS Foundation Trust (“the Trust”) in a rotational role as a Band 5 physiotherapist. Between 2009 and 2012, he worked in various different departments. In May 2012, he commenced a musculoskeletal rotation based in the physiotherapy gym at the Royal Orthopaedic Hospital (“ROH”). By the end of June 2012, concerns had been raised about the Registrant including in relation to the accuracy of patient assessments. Some patients were said to be unhappy with the treatment they had received from him. These issues were raised with the Registrant and he responded by saying that he was having trouble using the record system at the ROH. In July 2012, he sent an e-mail to Catherine Elliott, Head of Physiotherapy at the Trust, indicating that he felt he was struggling at ROH. After discussion of the concerns, the Registrant was told that his performance would be managed using the poor performance procedure (“PPP”).

The Registrant has [a health condition]. Evidence before the June 2017 Panel suggested that this impacted on his processing speed and working memory and may cause difficulty with note-taking. The 2017 Panel found “extensive measures taken by the employer over time to assist the Registrant within a planned programme to facilitate improvement in performance and practice.” The 2017 Panel expressly confirmed that it was not of the view that the Registrant’s [health condition] explained the competence issues or that his lack of clinical competency was related to [ his health condition].

The Registrant continued to work for the Trust and concerns continued to be expressed. In February 2013, he was moved from Stage 1 to Stage 2 of the PPP on the basis that he had not met the standards set for him. In March 2014, he moved to the neuro-outpatients service. Concerns continued such that in December 2014 it was recommended that he move to Stage 3 of the PPP. On 15 December 2014, the Appellant commenced long term sick leave. He did not return to work and resigned from the Trust in March 2015. The Trust had serious concerns about the safety implications of some of his practice and considered that he required a high level of support which was not sustainable. The Registrant complained that he was being “micromanaged” and that this was increasing his stress levels and, in turn exacerbating his [health condition].

Following the Registrant’s referral to the HCPC an application was made for and Interim Order. An Interim Order was made in October 2015, imposing Conditions of Practice.

In December 2015, the Registrant secured an honorary contract with the Birmingham Community Healthcare NHS Trust (“the Community Trust”) allowing him to undertake unpaid voluntary work at Moseley Hall Hospital as a Band 5 physiotherapist but subject to the conditions of practice imposed under the interim order. He began this work in January 2016, working seven hours a day on four days a week. The Registrant maintained this voluntary employment up to the time of the 2017 Panel decision. There were periods of absence due to ill health. By the time of the 2017 Panel decision, he had been in the voluntary post for about seventeen months. The feedback from the community Trust was positive.

The decision of the 2017 Panel was that the areas of lack of competence demonstrated by the findings of fact were that the Registrant failed to demonstrate proper clinical reasoning and to keep accurate clinical records. He also failed to communicate accurate clinical records. There was a worrying lack of improvement despite the extensive measures taken by the employer.
The 2017 Panel found that the issues of extensive lack of competence had not been remedied. This gave to a risk to patient safety and/or inappropriate treatment. The 2017 Panel also found that the Registrant demonstrated a worrying lack of insight into his failings. The Registrant showed a tendency to blame others for his condition rather than taking responsibility for his lack of competence. He failed to recognise that as an autonomous practitioner that he needed to identify and manage these issues. The 2017 Panel concluded that there remained a current risk of harm to the public.

In her decision Yip J concluded that the reasons of the Panel did not justify the rejection of a Conditions of Practice Order. In particular:

“In my judgement the Panel overlooked the reality of what had happened since 2015. It had been considered appropriate to make the Appellant subject to a Conditions of Practice Order in the interim period. He had shown extraordinary commitment to his voluntary placement, keeping up a significant number of hours per week in addition to having a paid job to meet his living expenses. He had complied with the conditions imposed, and in that context, had received genuinely positive references. There was no suggestion that public protection had not been maintained. Although the Appellant continued to lack insight into his lack of competence, he had clearly demonstrated a willingness to improve his clinical skills and had taken constructive criticism on board”.

“I also consider it wrong to say that conditions that were workable, practicable and verifiable could not be formulated. Conditions which were considered to offer public protection had been formulated at the interim stage and it was clear that progress had been made under such conditions”.

“In my judgment, taking the Appellant out of practice for a period of 12 months after he has displayed a real commitment to maintain his skills through the long interim period and produced evidence of improvement is not a proportionate sanction. Further, that course is likely to worsen rather than improve the Appellant’s performance and I do not consider that it can be said to maintain the balance between public and private interest”.

5. The decision of the New Panel sitting on 22 January 2018 recorded that:

‘The Panel noted that the Registrant’s reflective statement was self-critical and constructive. There were necessarily some limitations in the reflective statement because the Registrant was currently suspended and therefore unable to illustrate any changes in his practice.

1. The Panel decided that there was a need for conditions of practice which specifically addressed the competency concerns in respect of clinical reasoning and maintaining accurate clinical records. A condition requiring the Registrant to nominate a supervisor and to provide supervision reports would be workable and it would not be unduly onerous. The Panel considered that it was sufficient for reports of the supervisor to be supplied to the HCPC every three months. The Panel decided that it would be constructive and proportionate for the supervisor’s reports to address the areas of concern, namely clinical reasoning and the accuracy of his documentation.

2. In addition to the supervision conditions, the Panel decided that there should be conditions tailored to assist the Registrant to address and remedy the deficiencies in his practice. The process of remedying a lack of competence in basic areas of practice was likely to take a period of time and to be incremental. These conditions were designed to protect the public in monitoring the remediation process, and to constructively assist the Registrant to demonstrate to a Review Panel that he had remedied the lack of competence. The Panel decided that there should be conditions requiring the Registrant to formulate a Personal Development Plan (PDP) and to meet with his supervisor to consider his progress towards achieving the aims set out in the Personal Development Plan.

3. The Panel considered carefully whether there should be any restrictions on the Registrant’s practice. The Panel decided that a restriction, which limited the areas of the Registrant’s work, would be unduly onerous and would not strike the appropriate balance between the need to protect the public and the Registrant’s interests. The Panel was satisfied that the Registrant has a sufficient level of insight that he will himself limit the areas in which he will seek work.

4. However, the Panel decided that a restriction that the Registrant should work only at Band 5 level or its equivalent was appropriate and proportionate. The competency concerns found by the 2017 Panel relate to basic physiotherapy skills and tasks. The Panel considered that there would be a risk to the public if the Registrant were to undertake a role, which required him to take on responsibilities in addition to the standard responsibilities of an autonomous practitioner at Band 5. The Panel did not consider that this restriction was an unduly onerous condition or a significant deterrent to a potential employer. Potential employers would be aware from the other conditions of practice that there were ongoing competency concerns and they would therefore expect there to be a significant period of rehabilitation before the Registrant could be considered for promotion. The Panel’s view was that this condition struck an appropriate balance between the need to protect the public and the Registrant’s interests.

5. The Panel considered the appropriate length of time for the Conditions of Practice Order. The Panel decided that the appropriate length of time is eighteen months. The Panel considered that it might take the Registrant some time to secure an appropriate position and that he might initially work in a voluntary position. An eighteen month period would enable sufficient time for the Registrant to progress to a paid position and to be able to provide evidence of his competency in paid employment to a Review Panel. The Panel considered a shorter length of time for the Order, as submitted by Ms Brown, but decided that the longer period of eighteen months was appropriate and proportionate. The Registrant may apply for an early review if that is appropriate.

6. The terms of the Conditions of Practice Order that was imposed by the New Panel, and which remains in force till 18 October, are:

The Registrar is directed to annotate the Register to show that, for a period of 18 months from the date this Order comes into effect, you, Kieran McDermott, must comply with the following conditions of practice:

1. If you take up work as a Physiotherapist you must inform the HCPC promptly and you must confine your professional practice to a Band 5 position (or an equivalent level if you are working in the private sector).

2. You must place yourself and remain under the supervision of an HCPC registered Physiotherapist of Band 6 or above ( or an equivalent level if you are working in the private sector) and advise the HCPC of that person’s name within 28 days from the date you commence work as a Physiotherapist.

3. You must work with a named supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(a) clinical reasoning; and

(b) maintaining accurate clinical records.

4. You must forward a copy of your Personal Development Plan to the HCPC within two months from the date you commence work as a Physiotherapist.

5. You must allow a named supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

6. You must obtain a report from a named supervisor and submit the report to the HCPC within three months from the date you commence work as a Physiotherapist. Thereafter you must obtain and submit supervisor reports on a three monthly basis. The reports should address:

(a) your clinical reasoning

(b) your maintenance of accurate clinical records in line with HCPC standards ; and

(c) your progress towards achieving the aims set out in your Personal Development Plan.

7. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with (at the time of application); and

C. any prospective employer (at the time of your application).

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

7. That Order came into effect on the 19 February 2018 and is the subject of a first review today.
        
Submissions

8. The Panel had placed before it a bundle of documentation prepared by the HCPC which totalled 293 pages. This bundle included documentation which had been submitted by the Registrant for consideration at the adjourned hearing on 15 July 2019. The Panel also had before it two further bundles of documentation submitted by the Registrant. This documentation related to his period of practise from the 15 July 2019 to date. The first bundles had contained a 5 page witness statement from the Registrant and 44 pages of supporting documentation and the second bundle a further 5 pages of evidence. This documentation disclosed the fact that since April 2019 the Registrant had been working for the Sandwell and West Birmingham Hospital NHS Trust as a band 5 Physiotherapist on a rotational contract. The Registrant’s appointment started half way through a rotation within the Stroke and Neurological team. He completed three months of the five month rotation in this team. He subsequently moved to the Trauma and Orthopaedic
team in July 2019. There was therefore only one formal independent report dated 1 July 2019 from a Supervisor, Ms Beardsmore, in accordance with the Conditions of Practice Order. The next rotation would take place in January 2020 when the Registrant would move to Intermediate Care.

9. The HCPC submitted that the Panel should focus on the key issues which had been identified at the January 2018 hearing. The decision of that panel discounted a continuing lack of insight having considered that the Registrant had by that time accepted the seriousness of his failings. The core concerns were the lack of competence in the areas of clinical reasoning, accurate and contemporaneous record keeping and effective communication with colleagues. The Panel should focus on these matters to see if there had been remediation and therefore no further concerns about the Registrant’s practice.

10. The HCPC accepted that the Registrant had fully complied with the current Conditions of Practice Order. The HCPC acknowledged that the information supplied by the Registrant went beyond that which he was required to provide to the HCPC. It was appreciated that the Registrant had shown commitment to HCPC process.

11. In the HCPC’s view there was insufficient evidence that the Registrant had been able to demonstrate that he could work effectively, safely and independently at the level of a Band 5 Physiotherapist. The HCPC highlighted the fact that the Registrant had only been working as a Band 5 practitioner under supervision since April 2019. For the duration of the rest of the period of the Conditions of Practice Order the Registrant had been working as an unqualified Physiotherapist Assistant at a Band 4 level. Whilst the reports from his employer were encouraging, they identified areas where there remained concerns. In view of this evidence the HCPC considered that the imposition of a Suspension Order would be disproportionate and that a Caution Order would not provide the necessary level of service user protection. The HCPC further considered that the current conditions were working effectively and, as stated by the Registrant, had been found to be supportive of his endeavours to improve his skills and practice.

12. The HCPC accepted that it may have been difficult for the Registrant to demonstrate that he had achieved the requisite level of competence in the four month period of time that he has been working as a Band 5 Physiotherapist under the terms of the conditions. For this reason the HCPC considered that, with a view to him being able to put before a future reviewing panel a body of documentation that attested to his improvement, the appropriate period for a further Conditions of Practice Order should be 12 months.   It was emphasised that if the Registrant felt himself able to produce a comprehensive bundle of evidence that he has fully attained the level of an autonomous practitioner then he had the option of requesting an early review under Article 30(2).

13. The Registrant’s representative submitted that the evidence showed that the Registrant had been consistently open and candid about his failings. He has placed before this Panel a large number of examples of how his practice was reflective, considered, and aimed at addressing former failings in practice. He had been totally compliant to the HCPC process and had shown and demonstrated commitment to fulfilling the conditions. It was submitted that continuation of the order was unnecessary given the encouraging remarks and observations made by his seniors. The Registrant had demonstrated how he had maintained his knowledge by going to lectures and courses. The Registrant had been open and honest with his employer before taking up his post and had informed colleagues and his seniors of the terms of his conditions. In this way he felt able to seek and accept support. He had identified the limits of his abilities and now sought help and advice when he felt he was ‘outside of his comfort zone’. These measures and
working practices, it was argued, meant that the Registrant was unlikely to allow himself to fall below the standards required and no longer posed a risk to the public.

14. The Registrant’s representative accepted that the Panel may be of the view there were areas in which there was a need for further evidence that the Registrant had brought his practice up to the level required of an autonomous practitioner. If this were the case, then the Panel was invited to impose a Condition of Practice Order for a shorter period of 6 months. A longer period would be disproportionate given the improvements which had already been identified.

Decision

15. In undertaking its task, the Panel is conducting a comprehensive appraisal of the Registrant’s current abilities with a view to establishing whether he is now fit to return to unrestricted practice.  The Panel is not undertaking the task of rehearing the matters that had been brought against the Registrant nor going behind any previous findings. 

16. This Panel has taken into account all documentation placed before it and has heard and given appropriate weight to the fresh evidence of remediation supplied by the Registrant.  It has heard the parties’ submissions; taken and accepted the advice of the Legal Assessor and it has reminded itself of the terms of the HCPTS Practice Notes.

17. The Panel further noted that it was considering the evidence before it regarding the Registrant’s practice since the order was imposed. In this regard it is assessing that evidence to ascertain whether the identified failings had been successfully addressed. The failings identified and which required remediation included clinical reasoning, accurate record-keeping and communication with colleagues. The Panel also noted the 2018 panel referred to the need to remediate the lack of competence in basic areas of practice. 

18. In relation to the evidence before the Panel it noted that the Registrant had voluntarily provided individual reports entitled ‘Inpatient Therapies: Record of Clinical Supervision’ on which he had recorded matters which he considered required noting and reflection. He had sent these by email to his supervisors for feedback. These documents identified matters where the Registrant had identified areas of concern and need for improvement plus strategies for remedying these mistakes. The Panel is impressed by this approach to self-awareness and reflection and would encourage the Registrant to maintain this practice. The Panel used this information to inform itself of the issues which the Registrant had identified and was addressing but did not rely on these self-assessment documents but on the formal independent assessment and formal feedback from his supervisors.

19. The only evidence before the Panel of an overall assessment of the Registrant’s abilities was the report from Ms Beardsmore, who had undertaken his supervision during his first rotation. In addition the Panel had before it formal clinical supervision feedback records dated 18 April 2019, 18 July 2019 and 30 July 2019 from his clinical supervisors. In addition the Panel took into account a competency framework from the Registrant’s first rotation. The Registrant’s scores within that framework comprised two below competence, 2 at the standard of a Band 5 practitioner, and the rest were identified as working towards competence.  In the assessment reports and the clinical supervision records concerns with the Registrant’s practice in all of the three areas which the final hearing had considered required remediation were identified.  In relation to clinical reasoning it was noted that his assessment lacked depth and his clinical documentation lacked specificity and he required prompting to assess a patient fully. Whilst the Registrant’s record keeping had improved, a record of clinical supervision suggests he still required prompts and supervision to ensure it was kept up-to-date. Further, there is evidence that some of the Registrant’s clinical records lacked the degree of clarity required to identify clearly outcomes of treatment and plan.  With regard to communication with colleagues the formal assessment from the Registrant’s first rotation identifies a need for the Registrant to communicate to others better.

20. On the basis of this evidence, the Panel concluded that there remain residual areas of concern in which the Registrant is failing to demonstrate that he is safe to work without some form of supervision and support. The Panel has therefore concluded that the Registrant is not yet able to work as an autonomous practitioner and that there was still a need for some form of restriction. This being the case, the Panel concluded that the Registrant’s fitness to practise remained impaired on both elements of personal and public components the latter flowing from the fact that the Registrant is still not working at a level of a safe and effective autonomous practitioner.

21. Having made this decision, the Panel went on to consider what level of restriction was appropriate to ensure service user protection whilst allowing the Registrant to practise and in due course return to safe practice. In other words, applying the principles of proportionality and ensuring that the minimum of restriction is imposed that would achieve that proportionality. The Panel also noted the wider overarching principle of upholding public interest and maintenance of confidence in the regulatory and disciplinary processes.

22. As advised by the Legal Assessor the Panel consulted the latest edition of the HCPTS Sanctions Policy, referred again to the standards of proficiency and the Standards of conduct, ethics and performance, and took into account the representations of the parties.

23. The Panel started its considerations by assessing whether this was a case in which to take no further action or to apply mediation. Neither of these actions would provide sufficient service user protection. The Panel therefore concluded that these measures were neither proportionate nor appropriate in this instance.

24. In considering whether a Caution Order was the appropriate and proportionate restriction to impose the Panel took into account the observations of the clinical supervisors. A Caution Order would, in its view, not provide sufficient service user protection in that those areas where there remained concern would not be addressed and the potential for repetition and risk of harm would not be removed. Further this measure would not prohibit the Registrant from working independently. The Panel therefore concluded that a Caution Order was not appropriate until the Registrant had been able to fully satisfy a panel that there remained little or no likelihood of a repetition of the matters which had brought the Registrant’s practice to the attention of the HCPC.

25. The Panel therefore considered whether the terms of the Conditions of Practise Order in place remained the proportionate and appropriate Order taking into consideration the Registrant’s recent performance and the noted improvements in his practice. After careful consideration the Panel came to the conclusion that the current conditions are providing the appropriate level of service user protection and there is nothing further that the Panel would wish to add nor to remove. In this respect that Panel noted that the Registrant was able and willing to comply with the conditions and he has the ongoing support of his employer.

26. The Panel took note of the submissions of both parties in relation to the period during which conditions should apply. It considered remediating the lack of competence was likely to take a period of time, be incremental and recognised that a short period of conditions would place the Registrant under further pressure to present evidence of compliance and remediation. Further, as the Registrant has only been able to comply with the conditions for a relatively short period of time, four months, a longer period would provide him with the opportunity to present evidence of successful completion of two rotations within his current role. The Panel has therefore decided that it will confirm the terms of the current order and extend it for a further period of 12 months from the time when the current order comes to an end, 19 August 2019.

Order: That the Registrar is directed to annotate the Register to show that for a further period of 12 months from the 18 August 2019, Mr Kieran McDermott must comply with the following conditions of practice:

1. If you take up work as a Physiotherapist you must inform the HCPC promptly and you must confine your professional practice to a Band 5 position (or an equivalent level if you are working in the private sector).

2. You must place yourself and remain under the supervision of an HCPC registered Physiotherapist of Band 6 or above ( or an equivalent level if you are working in the private sector) and advise the HCPC of that person’s name within 28 days from the date you commence work as a Physiotherapist.

3. You must work with a named supervisor to formulate a Personal Development Plan designed to address the following areas of your practice:

(a) clinical reasoning; and

(b) maintaining accurate clinical records.

4. You must forward a copy of your Personal Development Plan to the HCPC within two months from the date you commence work as a Physiotherapist.

5. You must allow a named supervisor to provide information to the HCPC about your progress towards achieving the aims set out in your Personal Development Plan.

6. You must obtain a report from a named supervisor and submit the report to the HCPC within three months from the date you commence work as a Physiotherapist. Thereafter you must obtain and submit supervisor reports on a three monthly basis. The reports should address:

(a) your clinical reasoning

(b) your maintenance of accurate clinical records in line with HCPC standards ; and

(c) your progress towards achieving the aims set out in your Personal Development Plan.

7. You must inform the following parties that your registration is subject to these conditions:

A. any organisation or person employing or contracting with you to undertake professional work;

B. any agency you are registered with or apply to be registered with (at the time of application); and

C. any prospective employer (at the time of your application).

8. You will be responsible for meeting any and all costs associated with complying with these conditions.

No notes available

History of Hearings for Mr Kieran Mcdermott