Mrs Alice Treharne

Profession: Speech and language therapist

Registration Number: SL09664

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 22/08/2019 End: 17:00 02/09/2019

Location: Health and Care Professions Tribunal Service, 405 Kennington Road, London

Panel: Conduct and Competence Committee
Outcome: Conditions of Practice

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Allegation

During the course of your employment as a Speech and Language Therapist with East Kent Hospitals University NHS Foundation Trust between 12 April 2010 and 26 July 2016, you:

  1. In relation to Patient A:

a) did not undertake and/or record a review with Patient A between 13 March 2016 and 30 March 2016;

b) did not undertake and/or record an assessment of Patient A's swallow between 30 March 2016 and 13 April 2016;

c) did not record the rationale behind your alteration to Patient A's diet following an assessment on 13 March 2016;

d) did not undertake and/or record undertaking a comprehensive communication assessment with Patient A, which:

i. resulted in Patient A, Patient A's family and Patient A's carers not being provided with advice on how to best facilitate communication;

ii. may have led to an inappropriate decision being made regarding Patient A's mental capacity and/or communication diagnosis.

2. Did not undertake and/or record assessments in relation to:

a) Patient B, on 1 and/or 2 December 2015;

b) Patient C, on 26 and 30 November 2015 and/or 2 December 2015;

c) Patient D, on 2 and/or 3 December 2015;

d) Patient E, on 1 December 2015;

e) patient F, on 18, 23, 24 and 25 November 2015 and/or 2 and 3 December 2015;

f) patient G, on 4 December 2015;

g) patient H, on 30 November 2015;

h) patient I, on 4 December 2015;

i) patient J, on 18, 25 and 27 November 2015 and/or 2 December 2015.

3. The matters set out in paragraphs 1 and 2 constitute misconduct and/or lack of competence.

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

Finding

Preliminary Matters

Application to Amend the Allegation

1. At the commencement of the hearing, the Presenting Officer applied to amend a number of the particulars of the Allegation to ensure that it more accurately reflected the HCPC’s position. He also applied to offer no evidence in relation to particular 2(f). Written notice that the HCPC intended to apply to make these amendments was sent to the Registrant on 1 November 2017. That letter stated, “This decision follows further investigations and it is our view that the proposed amendments will clarify the allegation against you and more accurately reflect the information that will be provided to you.”

2. The Registrant’s Representative confirmed that the Registrant had no objection to the proposed amendments to the Allegation.

3. The Panel heard and accepted the advice of the Legal Assessor. The Legal Assessor advised the Panel that there is no specific Rule contained within the Health and Care Professions Council (Conduct and Competence Committee) (Procedure) Rules 2003 (the Rules) governing a power to amend an allegation. The Panel should have regard to the merits of the case, the fairness of proceedings and consider whether the requested amendments can be made without injustice. The Panel should consider the wider public interest in ensuring that allegations accurately reflect the evidence that has been adduced. It is up to the Panel whether to accept all, none, or some of the amendments proposed by the HCPC.

4. The Panel considered that the Registrant had been given plenty of notice and ample opportunity to consider the proposal. In the Panel’s judgment, the proposed amendments were fair and were made on the basis of the material gathered during the HCPC's investigation. The Panel was satisfied that the amendments could be made without injustice to the Registrant, that they were in fact to her benefit, in that the amendments gave some clarification and accuracy to the charges, and they did not affect the overall substance of the Allegation. The Panel was further satisfied that the application by the HCPC to offer no evidence in relation to sub-particular 2(f) did not amount to an under-charge. Accordingly, the Panel acceded to the Presenting Officer’s application to amend the Allegation.

Documentation

5. The Panel received the HCPC hearing bundle, numbered pages 1-1799. The hearing bundle included:

• Internal correspondence of the East Kent Hospitals University NHS Foundation Trust (the Trust) in relation to these matters;

• The contemporaneous reports of the investigation meetings carried out by the Trust in relation to these matters;

• Medical Notes and Speech and Language Notes in relation to relevant patients in these matters;

• The Registrant’s job description.

6. Witness statements from the Registrant, witnesses EB and CH, and other supporting exhibits were also before the Panel.

7. The Panel was also provided with exhibit matrices in relation to the factual particulars from both the Presenting Officer and the Registrant’s Representative.

Background

8. The Registrant is a registered Speech and Language Therapist and was employed by the Trust as a Highly Specialised Speech and Language Therapist (Band 7) from 12 April 2010 until 19 April 2016, when she was suspended.

9. The Registrant was part of the Speech and Language Therapy team working on the Stroke Unit at William Harvey Hospital and was responsible for treating stroke patients at risk of communication and swallowing difficulties. The allegations in this case are that the Registrant did not properly conduct or record patient reviews and assessments.

10. Initially, the Registrant was line managed by witness EB, a Speech and Language Therapist who was Clinical Lead at the time. In 2011 there was a breakdown of communication between them and the Registrant was line managed by another Speech and Language Therapist, AD, who was Head of Speech and Language Therapy. EB then took over the clinical supervision of the Registrant in 2013.

11. In 2014, a Band 6 Speech and Language Therapist (“the Band 6”) was appointed to work with the Registrant.

12. In July 2015, the Registrant raised concerns regarding the Band 6 with EB and AD, and asked them to review medical notes made by the Band 6. After reviewing the notes, while EB and AD had issues with some entries made by the Band 6, they were in fact more concerned with the Registrant’s entries in the notes.

13. It is said that EB attempted to address these issues with the Registrant in a supervision session in July 2015; however, another breakdown in communication occurred and the Registrant left the session.

14. EB was asked to review a number of the Registrant’s patient notes in December 2015 and she produced a document identifying various issues.

15. In January 2016, witness CH, a Speech and Language Therapist, became the Clinical Lead for Speech and Language Therapy for Inpatients at the Trust. In February 2016, CH was appointed to investigate concerns about the Registrant. CH neither worked with the Registrant nor supervised her, nor ever observed her in her clinical practice. CH reviewed the Registrant’s medical notes and, on 30 March 2016, CH met with the Registrant and advised her that she was under investigation.

16. The Registrant was suspended from the Trust on 19 April 2016, pending the Trust’s investigation.

17. In the course of her investigation, CH reviewed patient notes and obtained statements from EB and AD. She also interviewed the Registrant on 29 April 2016 and 6 May 2016.

18. In addition to the patient notes provided to her, CH decided to examine a then-current case of the Registrant’s, Patient A. Patient A had suffered a stroke and was diagnosed with dysphasia. The concerns regarding the Registrant’s practice in relation to properly conducting or recording reviews and assessments of Patient A feature in particular 1 of the Allegation. Concerns relating to the other patient notes feature in particular 2.

Partial admissions

19. The Registrant, via her Representative, made partial admissions to the Allegation as follows:

• Particular 1(a), 1(b), 1(d) – the Registrant admitted that she did not record the relevant reviews/assessments detailed in these sub-particulars. The Registrant denied that she did not undertake those reviews/assessments. Although the Registrant accepted the stem of sub-particular 1(d), that she did not record undertaking a comprehensive communication assessment, she denied the rest of the particular as set out in 1(d)(i) and 1(d)(ii);

• Particular 1(c)(ii) – the Registrant admitted that she did not record the rationale behind her use of bread and jam to assess Patient A’s swallow;

• Particular 2 – the Registrant admitted that she did not adequately record contacts and/or assessments in both the medical notes and SLT notes in relation to each of the sub-particulars (a)-(i), as amended. The Registrant denied that she did not undertake the contacts and/or assessments as alleged.

Evidence

20. The HCPC adduced oral evidence from two witnesses, EB and CH. Both witnesses confirmed and adopted their witness statements as their evidence in chief and were asked a number of supplementary questions by the Presenting Officer.

21. The Registrant was in attendance and represented. The Registrant gave evidence to the Panel and was cross-examined by the Presenting Officer. She also answered questions from the Panel. In her oral evidence to the Panel, the Registrant detailed her professional career. She qualified as a Speech and Language Therapist in the United States in 1991, some 27 years ago. The Registrant moved to the UK to work in 2003 and it was then that she first met EB, although they did not work within the same professional setting until 2010. The Registrant described her relationship with EB between 2003-2010 as being a positive one. A communication breakdown first arose in 2011 over an appraisal meeting. EB later became the Registrant’s clinical supervisor, which the Registrant found uncomfortable.

Assessment of Witnesses

22. The Panel first considered the overall credibility and reliability of all the witnesses it heard from, including the Registrant.

23. The Panel considered that EB gave credible and consistent evidence, providing a fair and measured account of her professional relationship with the Registrant, for whom she was initially Line Manager and then, later, Clinical Supervisor. EB made concessions when she did not know the answer to a question. EB was clear in her mind about the working systems in place and around the expectations of her team. Although it was evident that she and the Registrant had had a strained relationship at times, EB focused on the facts and did not try to embellish her evidence. The Panel considered that this added to her credibility.

24. The Panel also heard from CH and found her to be credible and straightforward in the giving of her evidence. She answered questions clearly, concisely, and confidently, and gave well-reasoned answers. CH was clear around the parameters of what she had been asked to investigate at the Trust and was aware of her limitations in answering particular questions. The Panel considered that CH did her best to assist the Panel and had no reason to mislead it.

25. When considering the Registrant’s evidence, the Panel acknowledged that she was extremely nervous and under significant stress. The Panel considered that the significant volume of papers before the Registrant contributed to her apparent confusion when answering questions. It considered that the Registrant was an honest witness who did her very best to assist the Panel, sometimes to her detriment, insofar as it believed that she had difficulty in focusing on and answering direct questions and, on occasion, she spoke of what she thought she would have done in the circumstances rather than what she actually did. The Panel concluded that, on some occasions, the evidence she provided was contradictory; for example, around the dangers of leaving fluids with Patient A yet choosing to leave a cup of water within his reach. On a number of occasions, the Registrant appeared to admit a sub-particular, then deny it at a later stage. That said, the Panel considered that the Registrant readily admitted when she did not do certain things and that she was a dedicated and caring therapist.

Decision on Facts

26. The Panel proceeded to consider each particular and sub-particular separately, taking account of the documentary and oral evidence available to it, the submissions of the Presenting Officer and Registrant’s Representative, and the legal advice provided by the Legal Assessor. In determining whether an allegation is “well founded” or “proved”, the Panel is required to decide firstly whether the HCPC, which has the burden of persuasion in relation to the facts alleged, has discharged that burden. The standard of proof is the civil standard, on the balance of probabilities.

27. In relation to the drafting of particulars 1(a) and 1(b), the Presenting Officer informed the Panel that the wording “between” the two given dates in each sub-particular should be interpreted by the Panel to be exclusive of the stated dates. He submitted that the HCPC had prepared its case on this basis. For example, in relation to particular 1(b) and the wording “between 30 March 2016 and 13 April 2016”, those two specified dates should not be included when considering whether a factual particular is found proved but that it was for the Panel to interpret.

28. The Registrant’s Representative said that it had been her understanding that the two dates had been inclusive and that she should have clarified that point. She did not make any further submissions on the point.

29. The Panel considered the Presenting Officer’s submissions carefully, with public protection at the forefront of its mind. It considered that, for example, it was clear from the extensive medical notes that the Registrant had undertaken an assessment of Patient A’s swallow on 30 March 2016; both EB and CH had agreed that that was an assessment of swallow. The Panel agreed that the HCPC had prepared its case on that basis and therefore determined to read particulars 1(a) and 1(b) to be exclusive of both the stated beginning date and end date, but noted that the particulars could have been drafted more clearly.

30. The Panel made the following findings.

Particular 1(a) – Found proved

31. The Panel took into account the Registrant’s partial admission in relation to this sub-particular. The Registrant accepted that she did not record a review with Patient A between 14 March 2016 and 30 March 2016, but she denied the allegation that she did not undertake a review between those dates.

32. The Registrant’s position, given in oral evidence, was that she “touched base” with all patients, to gather information and prioritise her caseload before Multi-Disciplinary Review (MDR) meetings, so that she could contribute effectively at those meetings. It was the Registrant’s case that this “touching base” constituted a review, albeit a “limited” one.

33. The Panel gave careful thought to what constituted a “review”. It took into account EB’s evidence that, although a review will vary depending on the patient, a review “generally involves asking the patient how they are doing, discussing the patient with staff to check a patient’s health status and checking their oral intake and communication. If a patient has swallowing problems, this could mean going back to check that they are safe on the recommendations that you have made or, if they have improved, whether they can be assessed and their food and/or fluids upgraded, or if they had deteriorated, whether their food and/or fluids needed to be downgraded. This would usually involve reviewing the texture of diet and fluid given and re-assessing the swallow to upgrade/downgrade textures. If there were previous communication problems, there would also be a review of their communication.” CH’s evidence was that, “A “review” is a consideration of the patient’s current status to determine whether an assessment is required or a change of management is necessary in order to either progress the patient or keep them as safe as possible on the least restrictive recommendations. This can involve looking at the patient’s medical notes, looking at the patient’s overall medical status (for example, a high temperature may indicate a chest infection), noting any changes and speaking to any relevant staff e.g. physiotherapy and nursing staff.”

34. CH stated that, in terms of frequency of reviews, she would expected a minimum of a review once a week and that for a patient with dysphagia who has just been admitted to the ward in Patient A’s condition, she thought that the appropriate frequency was 2-3 times a week as “their condition can change so quickly”.

35. The Panel accepted the evidence of EB and CH in this regard and was of the view that a review would involve more than the basic information-gathering when “touching base” and would necessarily include consideration by the Registrant of whether Patient A’s care needs had changed.

36. In addition to the Registrant’s acceptance that she did not record a review over this period “because of time”, there was no documentary evidence before the Panel of the recording by the Registrant of a review of Patient A by her between 14 March 2016 and 30 March 2016. The Panel therefore found this part of the sub-particular proved.

37. The Panel had sight of the notes of the MDR, which related to ward rounds rather than meetings. A MDR is recorded in the case notes for 21 March 2016, although this was not entered by the Registrant. The Registrant did not state that she touched base with patients before ward rounds and there was no documentary evidence before the Panel that she did. In the absence of evidence that the Registrant had any contact with Patient A between 14 March and 30 March 2016, the Panel found that the Registrant had not undertaken a review of Patient A and found this allegation proved on the balance of probabilities.

Particular 1(b) – Found proved

38. The Panel took into account the Registrant’s partial admission in relation to this sub-particular. The Registrant denied the allegation that she did not undertake an assessment of Patient A’s swallow between 30 March 2016 and 13 April 2016, but she accepted that she did not record an assessment between those dates.

39. The Panel gave careful thought to what would constitute an “assessment”. It took into account EB’s evidence that, “As part of a review of a patient, a SLT may carry out an assessment of the swallow. An assessment of a patient’s swallow involves a SLT trying the patient on various food textures and liquid thicknesses and observing the patient’s swallow.” CH’s evidence was that, “An assessment of swallow is carried out to determine whether a patient can be progressed onto a more normal diet…As part of the swallow assessment, an SLT may give the patient something to eat and drink, working through a hierarchy of textures or consistencies, and observe how the patient manages with the texture or consistency to form an overall picture of the patient’s swallow function and safety. This can include: an oro-motor examination, palpating the larynx to feel for the timeliness of the swallow and the appropriacy of laryngeal elevation, observing mastication, seeing if anything is pocketing in the patient’s mouth, observing whether there is any drooling, listening to the patient’s voice after swallow, whether there is any coughing after swallow and or noting respiratory status throughout the examination.”

40. The Panel accepted the evidence of EB and CH in this regard and was of the view that an assessment indicated some sort of action and process by the Registrant.

41. The Registrant told the Panel in oral evidence that she met with Patient A and his family on 4 April 2016 and that she placed a glass of water next to Patient A, “hoping that he would drink it, take a sip, so that I could get some indication of what his physiology of what was happening, so the assessment occurred – I take it, I take it as an assessment.” As Patient A declined to sip the water, in oral evidence the Registrant appeared to concede that although she had attempted to carry out a swallow assessment on Patient A, she had not done so.

42. Further, the Panel noted the evidence before it that the Registrant had visited Patient A on 8 April 2016 and recorded, “MDR – Patient due to have a PEG inserted on Wednesday, 13.04.16. Discharge Plan is to home.” The Registrant also recorded in Patient A’s notes on 12 April 2016 that, “Swallowing Skills. Based on the food chart, patient’s po [per oral] intake is steadily increasing.” The Panel was in no doubt that these were records of the Patient A’s status, not an assessment of his swallow.

43. The Panel concluded that, although it accepted that there was contact and communication between the Registrant and Patient A between 30 March 2016 and 13 April 2016, and that there was communication between the Registrant and Patient A’s family, there was no evidence before the Panel that the Registrant undertook an assessment of Patient A’s swallow.

44. In the absence of any such evidence, the Panel found this allegation proved on the balance of probabilities.

Particular 1(c)(i) – Found proved

45. Although the Registrant denied this allegation, that she assessed Patient A’s swallow using bread and jam instead of working through a hierarchy of foods, she in fact admitted this factual sub-particular in oral evidence and indeed documented it in Patient A’s notes of 14 April 2016. The Panel had sight of Patient A’s medical notes which showed that the Registrant started the assessment of his swallow with bread and jam, which the patient declined. Accordingly, on the evidence before it, the Panel found this part of the allegation proved.

46. The Registrant submitted that her decision to offer bread and jam to Patient A, rather than using a step-by-step hierarchy of foods, was a calculated and appropriate risk. The Registrant stated, “I believe that to trial Patient A with bread and jam was appropriate, particularly because physiologically I believed that he could manage it, and, secondly, he could take it of his own volition.”

47. The Panel was mindful that any consideration of the Registrant’s clinical judgement in assessing Patient A’s swallow using bread and jam, and whether this amounted to a failure in her professional duty, was for the Panel’s consideration in due course, but it was satisfied that the factual sub-particular was proved.

Particular 1(c)(ii) – Found proved

48. The Panel took into account the Registrant’s admission that she did not record the rationale behind her use of bread and jam to assess Patient A’s swallow.

49. The Panel accepted EB’s evidence that, if it was considered necessary to depart from the usual hierarchy of foods, there should be a clear explanation as to why this was appropriate. EB stated, “I cannot say that bread and jam was inappropriate for Patient A as I did not see him and can only comment on what was written. There are times when a SLT will start with something else. However, I would expect [the Registrant] to clearly state why the hierarchy was not followed.” CH confirmed that she would expect a clinical professional at a senior level to “show some rationale” and said that it was important to note each level of texture and consistency tried.

50. Although in her oral evidence the Registrant detailed her rationale behind using bread and jam in the swallow assessment instead of working through a hierarchy of foods, the Panel had no evidence before it that the Registrant recorded the rationale behind her use of bread and jam.

51. In light of the Registrant’s admission and the documentary evidence before the Panel, the Panel found this sub-particular proved on the balance of probabilities.

Particular 1(d) (stem) – Found proved

52. The Panel took into account the Registrant’s partial admission in relation to this sub-particular. The Registrant accepted that she did not record undertaking a comprehensive communication assessment with Patient A on or around 14 April 2016, but she denied the allegation that she did not undertake the assessment.

53. The Panel gave careful thought to what would constitute a “comprehensive communication assessment”. It took into account EB’s evidence that what is involved in a communication assessment would depend on the patient and their particular condition, but that, “An in-depth assessment would be a formal, standardised assessment of language investigating comprehension of spoken and written language and expressive ability (spoken, written and reading). There may also be a need to assess cognitive function.” CH stated that, “A communication assessment involves talking to the patient and doing tasks to assess what the breakdown may be: (1) understanding (for example, you may place 3-4 items in front of them, name an item and ask them to point to it), (2) expressive language (for example, point to one of the items used in (1) and ask them to say the word) and (3) speech and writing abilities.”

54. The Registrant’s position was that she did undertake a comprehensive communication assessment of Patient A. In oral evidence, she gave a detailed description of what she considered a comprehensive communication assessment to be: “A comprehensive communication assessment takes into account where a person is at. So, it takes into account their alertness level. It takes into account if they’re oriented … Do they know why they’re in hospital … Then, it also looks at respiration is important because it’s physiology and it will never change, making sure that person is able to breathe adequately. Then it’s looking at a person’s listening skills or comprehension and there are various levels of comprehension, but I would always start by saying hello to someone, introducing myself and then asking them their name and I would assess their eye contact, their facial expression, body posture, so auditory comprehension. Then it takes into account their ability to express themselves and this can be either verbally with their words or non-verbally with their facial expressions, their body posture, for example, a wave. You know, when you leave the room and you say goodbye and you look and they wave to you, that’s very telling, so their ability to express themselves. It also takes into account a person’s reading comprehension. What they are able to read and understand, so this does not mean reading orally, it means looking at the printed word and understanding it and then, there’s writing and that can mean the printed word, conventional writing and it can also mean, and this goes along with expressing yourself, drawing pictures, drawing symbols to get your point across.”

55. The Panel accepted the oral evidence of CH that the Discharge Report for Patient A, completed in part by the Registrant on a date between 14 – 18 April 2016, was generic in that it did not include information on linguistic skills and only reported conversation rather than any language analysis. It also considered that the recorded observations in the Report did not reflect the Registrant’s own description of what a comprehensive communication assessment should be.

56. The Panel considered that there were a number of examples of observations made and recorded by the Registrant about Patient A’s speech in his medical notes. For example, on 4 April 2016 the Registrant noted that at the family meeting Patient A told the MDT, “You did well.” The Panel was of the view that these were observations, rather than constituting any comprehensive communication assessment.

57. The Panel accepted the evidence of EB and CH that a comprehensive communication assessment involved a structured approach to the assessment. The Panel considered the Registrant’s recording in the medical notes on 18 April 2016 and determined that, taking into account the evidence of CH and the Registrant herself, although the notes included some assessment, they did not amount to a comprehensive communication assessment in that there was no structured approach. The Panel compared that recording for Patient A on 18 April 2016 with a formal Mann Assessment of Swallowing Ability report by the Registrant referring to a different patient which evidenced a structured and comprehensive analysis of oro-motor function.

58. Furthermore, the Panel accepted the evidence of CH in her statement that, “there is no evidence in Patient A’s medical notes that [the Registrant] carried out an appropriate assessment of Patient A’s communication.”

59. In light of the Registrant’s admission that she did not record undertaking a comprehensive communication assessment, and in light of the lack of evidence before the Panel that she did undertake such an assessment, the Panel found this sub-particular proved on the balance of probabilities.

Particular 1(d)(i) – Found not proved

60. The Panel determined that the HCPC had not discharged its persuasive burden in relation to the allegation in that the Registrant not undertaking and/or recording undertaking a comprehensive communication assessment with Patient A “resulted in” Patient A, Patient A’s family, and Patient A’s carers not being provided with advice on how to best facilitate communication.

61. On the evidence before it, it was clear to the Panel that the Registrant had prolonged conversations with Patient A’s family and that Patient A’s family was content with the advice that the Registrant gave with regard to his ability to articulate. A relative of Patient A also stated that the Registrant lent the family literature about aphasia and the Registrant confirmed in oral evidence that she gave a DVD, a book, and a leaflet to them.

62. Although the Panel agreed with CH that without a comprehensive communication assessment Patient A, his carers, and his family “may not” have been provided with advice regarding how best to facilitate communication, this was not the charge for the Panel to determine. On the balance of probabilities, the Panel could not be satisfied that the fact that the Registrant did not undertake or record a comprehensive communication assessment resulted [emphasis added] in Patient A, Patient A’s family and Patient A’s carers not being provided with advice on how to best facilitate communication.

Particular 1(d)(ii) – Found proved

63. The Panel considered carefully the drafting of this sub-particular, that the fact the Registrant did not undertake or record a comprehensive communication assessment “may have” led to an inappropriate decision being made regarding Patient A’s mental capacity and/or communication diagnosis.

64. The Panel considered that the Registrant, as SLT, would have had an important input into the mental capacity diagnosis of Patient A. The Panel took into account the evidence of EH that she found it concerning that Mental Capacity Assessments were being carried out without an assessment of communication. The Panel accepted the evidence of CH that, “The lack of comprehensive communication assessment may also have led to an inappropriate decision regarding patient a mental capacity and communication diagnosis. It is easy to think that a patient does not have mental capacity if you assume that they cannot understand, and this may lead to you taking away choices from them and their ability to participate in their recovery. This can have a detrimental effect on their social well-being.” The Panel found CH’s evidence on this point compelling.

65. Accordingly, the Panel found that the fact the Registrant did not undertake and/or record undertaking a comprehensive communication assessment with Patient A may have led to an inappropriate diagnosis being made regarding Patient A’s mental capacity and/or communication diagnosis. The Panel found this allegation proved on the balance of probabilities.

Particular 2

66. When considering Particular 2 with its seven sub-particulars (a)-(i) (as amended), separately referencing Patients B, C, D, E, F, H, I and J, the Panel took into account the Registrant’s partial admissions made at the outset of the hearing. The Registrant accepted that, in relation to each of the sub-particulars, she did not adequately record contacts and/or assessments in both the medical notes and SLT notes. The Registrant did not admit, however, that she had not undertaken contacts and/or assessments.

67. When considering Particular 2, the Panel had sight of the Registrant’s Ward Book and both the medical and SLT notes of patients B-J. The Ward Book was hand-written by the Registrant and, in tabular form, listed the patient names (redacted) and the relevant date when, on the Registrant’s evidence, contact was made. The Registrant described the Ward Book to the Panel as, “my own personal aide memoire. How I would use it is when I received new referrals, I would write the patient’s name in red so that I knew they were new. When the new month started… I would list the patient names who are currently on the speech and language therapy caseload, in black ink. Then if I did work on a patient’s behalf, had a lengthy discussion with the nurse, for example, or the patient, I would put my initials to know that they were sorted, that the medical team knew what was going on.” The Registrant clarified in oral evidence that when she wrote her initials in red pen, it simply indicated a new referral, that “I have received it and I will be on the case as soon as possible”; when the Registrant wrote her initials in black, “that means that I have a duty of care to that person; that they have been seen and I now have a duty of care to them.” The Registrant stated that, if her initials were in black, that may or may not indicate a direct contact with the patient and that she would not be able to say, from the document alone, whether or not she had face-to-face contact with the patient on the relevant date.

Particular 2(a) – Found partially proved (Patient B)

68. The Panel accepted the Registrant’s evidence that her initials in black may or may not indicate a direct contact with the patient. It considered that the Ward Book entry for 1 December 2015 shows that there may have been direct contact on this date, as the Registrant’s initials “ALT” are documented in black.

69. In oral evidence, the Registrant said that she remembered having contact with Patient B on 1 December 2015. In her written witness statement, the Registrant also stated that she attended the Multi-Disciplinary Rounds (MDR) on 1 December 2015 “where Patient B was discussed.” The Registrant stated, “I was present and collaborated with the nurses and therapists.”

70. The Panel was not satisfied that the HCPC had discharged its persuasive burden that it was more likely than not that the Registrant did not undertake a contact with Patient B on 1 December 2015. Accordingly, the Panel found this part of the allegation not proved.

71. However, in light of the Registrant’s acceptance that she did not adequately record the contact in both the medical notes and SLT notes as per the entirety of the allegation, together with the documentary evidence before it, the Panel found this allegation partially proved.

Particular 2(b) – Found partially proved (Patient C)

72. In relation to 26 November 2015, the Panel had sight of the Ward Book with the Registrant’s initials written in red. The Registrant agreed that there was no contact with Patient C on this date because he was a new referral, having been admitted that day.

73. The Panel accepted the Registrant’s evidence and was of the view that there was no need for the Registrant to have seen Patient C on 26 November 2015, the date he was admitted to hospital. Accordingly, although it is factually correct that the Registrant did not have contact with this patient, there was no requirement for her to do so and consequently there was no requirement for her to record anything in the medical notes and the SLT notes.

74. In relation to 30 November 2015, the Ward Book showed the Registrant’s initials in black; the medical notes contained an entry by the Registrant; but there is no entry for the SLT notes for this date. Accordingly, although the Panel was of the view that the care records clearly show that Patient C was seen by the Registrant on 30 November 2015, the factual sub-particular is found proved as the visit was not recorded in both the medical and SLT notes.

75. Accordingly, the Panel found the allegation partially proved in relation to the recording of the contact on 30 November 2015.

Particular 2(c) – Found partially proved (Patient D)

76. The Panel had sight of the Ward Book entry, with the Registrant’s initials written in black for both 2 and 3 December 2015.

77. In relation to 2 December 2015, the Panel noted that contact was recorded by the Registrant in both the SLT notes (referencing a family meeting and the Registrant’s own observations of Patient D on that date) and the medical notes. Accordingly, on the evidence before it, the Panel determined that contact was made with Patient D and found this part of the allegation not proved.

78. The Panel took into account the Registrant’s admission that she did not record the contact adequately on 2 December 2015. The Panel did not receive any submissions from the Presenting Officer in relation to what constitutes “adequate recording”. In light of the evidence before it that the Registrant had recorded the contact in both the SLT and medical notes, the Panel did not find the recording part of the allegation proved.

79. In relation to 3 December 2015, the Panel saw no evidence of direct contact between the Registrant and Patient D. There was nothing recorded in either the SLT notes or the medical notes. It accepted, however, the Registrant’s oral evidence that her initials in black may or may not indicate a direct contact with the patient. The Panel was not satisfied that the HCPC has discharged its persuasive burden. Accordingly, on the balance of probabilities, the Panel could not be satisfied that the Registrant did not undertake a contact with Patient D and found this element of the sub-particular not proved. The Panel found the recording element of the sub-particular proved, both on the documentary evidence before it and in light of the Registrant’s admission.

Particular 2(d) – Found proved (Patient E)

80. In relation to 1 December 2015, the Panel had sight of the Ward Book with the Registrant’s initials written in red. The Registrant agreed that there was no contact with Patient E on this date because he was a new referral.

81. The Panel accepted the Registrant’s evidence and was of the view that there was no need for the Registrant to have seen Patient E on the date that he was admitted to hospital. Accordingly, although it is factually correct that the Registrant did not have contact with this patient, there was no requirement for her to do so and consequently there was no requirement for her to record anything in the medical notes and the SLT notes.

Particular 2(e) – Found partially proved (Patient F)

82. In relation to 23 November 2015, the Panel had sight of the Ward Book with the Registrant’s initials written in black. The Panel saw no evidence of direct contact between the Registrant and Patient F. There was nothing recorded in either the SLT notes or the medical notes. It accepted, however, the Registrant’s oral evidence that her initials in black may or may not indicate a direct contact with the patient. The Panel was not satisfied that the HCPC has discharged its persuasive burden. Accordingly, on the balance of probabilities, the Panel could not be satisfied that the Registrant did not undertake a contact with Patient F and found this element of the sub-particular not proved. The Panel found the recording element of the sub-particular proved, both on the documentary evidence before it and in light of the Registrant’s admission.

83. In relation to 24 November 2015, the Panel had sight of the Ward Book with the Registrant’s initials written in black. It accepted the Registrant’s oral evidence that her initials in black may or may not indicate a direct contact with the patient. The Panel saw no evidence of direct contact between the Registrant and Patient F. Although there was nothing recorded in the SLT notes, the Panel noted the recording made by a Band 6 colleague in the medical notes in relation to this patient, and saw that these notes were countersigned by the Registrant. On the balance of probabilities, the Panel was satisfied that the Registrant did not undertake a contact with Patient F on 24 November 2015; rather, it was undertaken by the Band 6. This element of the sub-particular is found factually proved, in that the Registrant did not have a contact. However, it has not been shown by the HCPC that there was a requirement of the Registrant’s to see Patient F, as Patient F was seen by the Band 6 SLT instead. The Panel found the recording element of the sub-particular not proved on the documentary evidence before it, in that the recording had been made in the medical notes by the Band 6 and countersigned by the Registrant. The absence of notes in the SLT records would appear to be the responsibility of the Band 6 SLT, rather than the Registrant.

84. In relation to 3 December 2015, the Panel had sight of the Ward Book with the Registrant’s initials written in black. The recording made by the Registrant on this date was a “Written Language Sample” from Patient F and the Registrant had recorded at 15.00 that the patient had used his left non-dominant hand. The Panel concluded that this was evidence that there had been direct contact between the Registrant and Patient F. Accordingly, the Panel found this element of the sub-particular not proved. The contact was not, however, recorded by the Registrant in either the medical notes or the SLT notes. Accordingly, in light of the documentary evidence and the Registrant’s admission in relation to recording, the Panel found the recording element of the sub-particular proved.

Particular 2(g) – Found proved (Patient H)

85. In relation to 30 November 2015, the Panel had sight of the Ward Book with the Registrant’s initials written in red. The Registrant agreed that there was no contact with Patient H on this date because he was a new referral.

86. The Panel accepted the Registrant’s evidence and was of the view that there was no need for the Registrant to have seen Patient H on the date that he was admitted to hospital. Accordingly, although it is factually correct that the Registrant did not have contact with this patient and that there is nothing recorded in either the medical notes or the SLT notes, there was no requirement for her to do so and consequently there was no requirement for her to record anything in the medical notes and the SLT notes.

Particular 2(h) – Found partially proved (Patient I)

87. In relation to 4 December 2015, the Ward Book showed the Registrant’s initials in black; but there is no entry by the Registrant in either Patient I’s medical notes or the SLT notes for this date. The Panel reminded itself of the Registrant’s evidence that, if her initials were in black, that may or may not indicate a direct contact with the patient and that she would not be able to say, from the document alone, whether or not she had face-to-face contact with the patient on the relevant date. The Panel was not satisfied that the HCPC had discharged its persuasive burden to show that contact had not occurred.

88. The Panel had sight of a record referencing an MDR ward round and that Patient I had been “Referred for PEG”. The note regarding the PEG tube insertion was not written by the Registrant. The Panel considered that the record indicated that there had been some discussion around Patient I. There was no evidence before it that contact had not occurred on 4 December 2015 between the Registrant and Patient I.

89. Accordingly, on the balance of probabilities, the Panel found the allegation partially proved, in that contact may have been undertaken but had not been adequately recorded.

Particular 2(i) – Found proved (Patient J)

90. In relation to 18 November 2015, the Panel had sight of the Ward Book with the Registrant’s initials written in red. The Registrant agreed that there was no contact with Patient J on this date because he was a new referral.

91. The Panel accepted the Registrant’s evidence and was of the view that there was no need for the Registrant to have seen Patient J on the date that he was admitted to hospital. Accordingly, although it is factually correct that the Registrant did not have contact with this patient, there was no requirement for her to do so and consequently there was no requirement for her to record anything in the medical notes and the SLT notes.

Decision on Grounds

92. Having determined the facts and having found some particulars proved, the Panel was required to judge whether the facts found proved amounted to a statutory ground as advanced by the HCPC. Whilst this would usually be considered following submissions from representatives on grounds and impairment, in this case the Registrant’s Representative had requested that the Panel determined grounds prior to receiving submissions on impairment.

93. The Panel noted that both parties agreed that the two grounds which may relate to this case are those of misconduct and/or lack of competence and that it was required to provide a decision in sufficient detail for readers to understand why the facts found proved do or do not amount to the ground(s) alleged. The Panel went on to consider, on the basis of the facts found proved, whether the grounds of misconduct and/or lack of competence were established. The Panel noted that there is no burden or standard of proof at this stage and exercised its own professional judgement, keeping at the forefront of its consideration the overarching objectives of the HCPC.

94. The Presenting Officer made submissions regarding the issue of grounds and addressed the Panel on both lack of competence and misconduct. He also referred to the HCPC Standards of Conduct, Performance and Ethics (2012) referencing paragraphs 1, 7 and 10, and the HCPC Standards of Conduct, Performance and Ethics (2016) paragraphs 1, 2, 6, and 10. He referred to the relevant HCPC Standards of Proficiency for Speech and Language Therapists (2014) as being paragraphs 1, 2, 4, and 8-15.

95. The Registrant’s Representative submitted that the Registrant accepted that there were failings in her recording and that she understood the seriousness of these failings. She asked the Panel to consider these admitted failings in the context of the Registrant being the only SLT on a 24-bedded ward, when there should have been at least two. She asked the Panel to consider whether it had a fair sample of the Registrant’s work and to bear in mind that the Registrant had worked at the Trust for a significant period of time before the issues arose.

96. The Panel accepted the advice of the Legal Assessor, who reminded it of the tests for misconduct and lack of competence and referred the Panel to Roylance v GMC (No. 2) [2000] 1 AC 311 and Holton v GMC [2006] EWHC 2960 Admin. The Legal Assessor advised the Panel that, in order to find lack of competence, it would need to have considered a fair sample of the Registrant’s work and that it should consider whether the Registrant has the knowledge, skills and judgement to practise safely. Lack of competence can be distinguished from misconduct in that it indicates an inability to work at the required level and connotes a standard of professional performance which is unacceptably low, demonstrated by reference to a fair sample of a Registrant’s work. Misconduct, on the other hand, was a different ground and required a serious departure from the proper professional standards that had caused or could cause real harm to patients, the public, or the wider public interest. The Legal Assessor reminded the Panel that a breach of the professional standards alone does not necessarily constitute misconduct. A single negligent act or omission was unlikely to amount to misconduct, but could do so if particularly serious. Multiple negligent acts or omissions were more likely to cross the threshold of misconduct. Serious misconduct has been described in legal cases as conduct which puts service users at unwarranted risk of harm; conduct which has brought the profession into disrepute; dishonesty; and conduct which breached a fundamental tenet of the profession.

97. The Panel concluded that the Registrant’s actions breached the following paragraphs of the HCPC Standards of Conduct, Performance and Ethics (2012 and 2016):
2012

1 You must act in the best interests of service users.

10 You must keep accurate records.
2016

1 Promote and protect the interests of service users and carers

2 Communicate appropriately and effectively

6.1 You must take all reasonable steps to reduce the risk of harm to service users, carers and colleagues as far as possible.

6.2 You must not do anything, or allow someone else to do anything, which could put the health or safety of a service user, carer or colleague at unacceptable risk.

10.1 You must keep full, clear, and accurate records for everyone you care for, treat, or provide other services to.

10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.

98. The Panel also concluded that the Registrant breached the following Standards of Proficiency for Speech and Language Therapists (2014):

4.2 be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately

10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines

14.2 be able to conduct appropriate diagnostic or monitoring procedures, treatment, therapy or other actions safely and effectively

14.5 be able to select and use appropriate assessment techniques

14.6 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment

14.7 be able to administer, record, score and interpret a range of published and self-generated assessment tools to describe and analyse service users’ abilities and needs using, where appropriate, phonetic transcription, linguistic analysis, instrumental analysis and psycholinguistic assessment

99. The Panel carefully considered the facts and the submissions made. From all the evidence within the bundles and the oral evidence given by EB, CH, and the Registrant herself, the Panel concluded that this case did not concern a lack of competence on the Registrant’s part. The Panel was not satisfied that the Registrant lacked the knowledge, skills, and judgement to practise safely, including in relation to conducting and recording assessments and reviews. In general terms, the Panel took the view that the Registrant was aware of the standards expected of her but failed to adhere to them. The Panel therefore found that there was not a lack of competence in respect of any of the matters found proved. Rather, this case concerned the Registrant’s failure to meet those proper standards, so that the proper ground for it to consider was misconduct.

100. The Panel next considered whether any of the facts proved could amount to misconduct. The Panel was aware that not every act falling short of what would be proper in the circumstances, and not every breach of the HCPC Standards, would be sufficiently serious that it could properly be described as misconduct.

101. Considering particular 2 first, the Panel noted that although it had made factual findings around contacts not being undertaken in relation to 2(d) (Patient E), 2(g) (Patient H), and 2(i) (Patient J), the Panel had no evidence that this was a “falling short” on the Registrant’s part; it had no evidence that there was a duty on the Registrant to have contact on the same day that a patient was newly admitted.

102. The Panel noted that its findings on particular 2 were mainly in relation to recording of contacts, but bore in mind the very particular circumstances of the Registrant’s own Ward Book and the requirement on her to “adequately record” a contact in both the SLT notes and the medical notes. The Panel noted the complexity of this system, in that the requirement to copy notes from the medical records to the SLT records for every contact regarding every relevant patient risked error. There was no suggestion that there was any harm caused to Patients B, C, D, F, and I and, after careful consideration, the Panel concluded that the Registrant’s failings did not amount to misconduct.

103. However, the Panel was in no doubt that the facts it had found proved in particular 1 in this case amounted to misconduct. The Panel noted the particulars found proved concern the Registrant not undertaking and/or recording reviews and assessments of Patient A, either at all or in accordance with established practice. It bore in mind that Patient A had suffered a stroke, was aphasic and dysphagic, with a left parietal infarct, and was therefore at high risk of choking. The Panel considered that the fact that there were numerous omissions in reviewing/assessing Patient A over a four-week period was indicative of a pattern, which raised serious concerns about the Registrant’s adherence to fundamental standards of care. For instance, by not undertaking a comprehensive communication assessment, the Registrant risked Patient A being isolated and not adequately involved in decisions about his own care; and also having a PEG tube inserted, with the associated risks of the procedure, when he may not have needed it. By leaving water by Patient A and, on another occasion, offering him bread and jam as a first test of his swallow, the Registrant placed Patient A at risk of harm by choking.

104. The Panel considered that the Registrant’s actions in not undertaking or recording reviews and assessments, leaving water near Patient A, and offering him bread and jam to assess his swallow rather than working through a hierarchy of foods, and not providing any rationale for deviating from such a hierarchy, fell seriously short of the standards expected of a Speech and Language Therapist. This placed Patient A at risk of harm and amounted to misconduct.

105. The Panel was in no doubt that the Registrant's conduct had the clear potential to undermine public confidence in the profession and it found that to characterise it as other than misconduct would fail to uphold proper professional standards and would undermine public confidence in the profession and in the regulatory function of the HCPC.

106. In these circumstances, the Panel determined that the ground of misconduct was well founded.

Decision on Impairment

107. Having reached its conclusion in respect of misconduct, the Panel went on to decide whether the Registrant’s fitness to practise is currently impaired.

108. The Presenting Officer submitted that the Registrant is currently impaired and referred the Panel to the evidence of the Registrant at the facts stage, relevant case law and the test for impairment. The Presenting Officer submitted that, despite the Registrant’s caring nature and the admissions she had made at the hearing, her past misconduct and breaches of proper professional standards had posed a risk of harm to Patient A. The Presenting Officer invited the Panel to consider the Registrant’s inability, when giving sworn evidence, to recognise that, for example, she had not undertaken a comprehensive communication assessment. Without full insight or sufficient remediation, he submitted, there was a risk of repetition of the misconduct which was likely to have detrimental implications for patients. The Presenting Officer further submitted that public confidence in the profession would be undermined if the Registrant’s fitness to practise were not found to be impaired by reason of her previous misconduct in this case.

109. The Registrant did not give evidence at this stage of the proceedings but provided a bundle of documentation, comprising 84 pages, for the Panel’s consideration. The documentation submitted on behalf of the Registrant included:

• a second witness statement from the Registrant dated 25 July 2019, in which the Registrant stated that, since her hearing had adjourned part-heard in March 2019, she had made conscious efforts to maintain a high standard of care and has worked independently and closely with peers to improve the quality of her care and note taking;

• details of face-to-face professional training courses the Registrant had attended in 2019;

• audits of a number of sets of the Registrant’s notes, these audits having been undertaken by other registered SLTs in her peer support group;

• evidence of the Registrant’s attendance at a SLT peer support group;

• a CPD Profile of 14 pages detailing Continuing Professional Development (CPD) activity completed by the Registrant between 2016-2019. She currently works in Private Practice as an Independent SLT, attending regular peer review and support meetings with her SLT colleagues;

• A number of professional testimonials and character references, including a letter of support from 4 SLTs who have provided peer review and support to the Registrant; and

• A Personal Development Plan dated 8 February 2019.

110. The Registrant’s Representative submitted that the Registrant was not currently impaired. She submitted that her client fully accepted that her conduct had placed Patient A at risk of harm but asked the Panel to consider this in the context of a workplace environment in which the Registrant was the only SLT, struggling with her workload and feeling isolated and unsupported. She said that the Registrant was a “caring professional trying to do her best” and that she had now had the opportunity to step back and reflect on what went wrong. The Registrant’s Representative invited the Panel to consider the detailed CPD activity undertaken by the Registrant, that the found misconduct occurred in 2016 and that there had been no other instances of concern, either at local level or with her regulator, in a professional career of 27 years. She submitted that the Registrant had expressed remorse from the outset and continued to do so today; that “the penny had dropped” during the first part of this hearing in March 2019; that she had insight that her identified failings were remediable and that the Registrant had done all that she could to remediate. She said that the risk of repetition of the misconduct was extremely low.

111. Having heard the submissions from the Presenting Officer and the Registrant’s Representative on the issue of impairment, the Panel also took account of the documentary evidence submitted by the Registrant. It accepted the advice of the Legal Assessor that the Panel had to consider whether the past misconduct leads to the Registrant’s fitness to practise being impaired now. Although the test of impairment is expressed in the present tense in relation to the need to protect the public against the acts and omissions of those who are not fit to practise, this cannot be achieved without taking account of the way a person has acted or failed to act in the past. There are two component parts of the test for impairment. First, there is what may be termed the personal component of this decision. The Panel should consider the proven past misconduct together with all the other evidence the Panel has in respect of the Registrant (e.g. insight, any evidence of the remedying of the deficiencies, the risk of repetition, and the risk to the public presented by any repetition of misconduct). Second, the Panel must also consider what may be termed the public component, namely, what would be the effect of not finding current impairment on the wider public interest? That wider public interest includes the maintenance of public confidence in the profession and its regulator and the declaring and upholding of proper standards of conduct. The Legal Assessor referred the Panel to the HCPTS Practice Note ‘Finding that Fitness to Practise is ‘Impaired’’ (March 2017) and to the guidance in the Fifth Shipman report and CHRE v NMC and Grant [2011] EWHC 927 (Admin).

112. The Panel has found a number of particulars proved which amounted to the statutory ground of misconduct. It was mindful that a finding of impairment does not automatically follow a finding on that ground. The Panel could properly conclude the act or omission was an isolated error and the chance of repetition in the future is remote. It also noted the guidance in the case of Cohen v General Medical Council [2008] that it must be highly relevant when determining impairment that the conduct leading to the allegation is easily remediable, has been remedied and is highly unlikely to be repeated.

113. The Panel considered the test set out by Dame Janet Smith in her Fifth Shipman report. In all these circumstances, the Panel found that the Registrant has in the past acted, and may be liable in the future to act, so as to put patients at unwarranted risk of harm; that she has in the past brought, and that she may be liable in the future to bring, the profession into disrepute; and that she has in the past breached, and may be liable in the future to breach, fundamental tenets of the profession, namely to promote and protect the interests of Patient A and to manage risk.

114. The Panel first carefully considered the personal component of impairment and considered the Registrant’s level of insight, whether her misconduct was capable of remediation, whether it had been remedied and the risk of repetition. The Panel considered that the areas of practice where misconduct had been found in this case were capable of remediation through meaningful reflection into the failings and re-training on the fundamental importance of adherence to the principles set out in the Standards detailed above.

115. In the Panel’s view, at the outset of this hearing in March 2019, the Registrant had demonstrated limited insight into her standard of practice in 2016 and the risks that she posed to Patient A, particularly in light of her oral evidence that she did undertake adequate swallow and communication assessments. In evidence, it was clear that the Registrant believed that she provided an excellent service to Patient A and that she had been persistently resistant to criticism from her supervisors. Although the Panel was of the view that the Registrant’s insight had developed both during the hearing in March and during the 4 month interval before her hearing resumed in August 2019, the Panel was not satisfied that she had yet developed sufficient insight.

116. The Panel gave credit to the Registrant for the extensive CPD she had undertaken. Having considered the detail of it carefully, the Panel did not consider that this learning addressed the fundamental issues it had identified in relation to her misconduct. The Panel was of the view that there was little evidence of the Registrant’s reflection of her learning being put into practice. For example, although the Registrant provided a detailed log of her reflections on patients B-J, the Panel considered these to be mostly referenced observations and not actual reflections on their management/clinical care. There is little self-criticism or discussion of any learning that would inform a change in practice. Further, in answer to a question from the Panel at the Impairment stage of the hearing as to what, if anything, she would do differently in relation to her management of Patient A, the Registrant (through her Representative) gave a detailed list of actions that she would undertake as part of a swallow assessment, but neglected to include in this an oromotor assessment. Based on the evidence that the Panel had before it, it considered an oromotor assessment to be the basis of any swallow assessment and would be required to be a part of the risk assessment relating to Patient A.

117. In addition, the Panel noted that the Registrant had presented the case of Patient A during a seminar in March 2018. When questioned by the Panel about this, she explained that the presentation had been to both students and fellow SLTs, the purpose of which had been to seek feedback on her management of the case. However, there was no evidence in either the documentation or her verbal answers (through her legal representative) as to what feedback she may have received and how this may have assisted her.

118. The Panel concluded that without appropriate insight, the effectiveness of remediation would be limited. The Panel was in no doubt that the Registrant is a caring and dedicated practitioner but, in light of all of the evidence before it, the Panel could not be satisfied that, if the Registrant were to be working in a similar environment with similar stressors, she would not act in the same or similar way again and she may continue to have difficulty prioritising her responsibilities in relation to patient needs within a busy, acute stroke, hospital setting. Although the Panel was encouraged by the fact that the Registrant has been working as a Speech and Language Therapist without incident since the time of the allegation, it noted however that this has been in different clinical environments than that in which she was working in 2016. It concluded that, in light of the Registrant’s lack of sufficient insight and remediation, there was a real risk of the shortcomings being repeated and therefore it found the Registrant to be impaired on the personal aspect of the test for impairment.

119. Turning to the public component of impairment, the Panel had regard to the important public policy issues which include the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. Although the Panel took into account that no actual harm was caused to Patient A, the Panel was concerned that the Registrant’s actions had the potential for harm and considered that members of the public and members of the profession would be concerned to learn that a Speech and Language Therapist had been found to have failed to undertake assessments and reviews in relation to a very vulnerable patient over a four week period. It determined that public and professional trust and confidence in the profession, professional standards, and the Regulator would be undermined if a finding of impairment were not made. Further, the present risk of repetition of the Registrant’s misconduct would, in the Panel’s view, be a matter or real concern to an informed member of the public and would risk undermining public confidence in the profession and its regulation if a finding of current impairment were not made.

120. The Panel concluded that the Registrant’s fitness to practise is currently impaired by reason of her misconduct on the basis of both the personal and public components.

Sanction

121. Having delivered the above findings, the Panel invited the parties to address it as to sanction.

122. The Presenting Officer referred the Panel to the Sanctions Policy (SP) adopted by the HCPC. He reminded the Panel that the purpose of imposing a sanction was not to punish the Registrant but to ensure that the public was protected, promote public confidence in the profession and provide a deterrent to other registrants. The Panel should address the sanctions in ascending order and identify the most appropriate and proportionate means of addressing the concerns identified. He invited the Panel to find that the sanctions of no further action, mediation or a Caution Order were not appropriate in the circumstances of this case, but acknowledged that this was a matter for the Panel’s judgment.

123. The Registrant’s Representative confirmed to the Panel that she concurred with the Presenting Officer’s assessment of the approach it should adopt when considering what, if any, sanction was appropriate in this case. She submitted that, although the misconduct found was serious, it was not at the “top-end” and was not a result of a deliberate or intentional act by the Registrant. The Registrant’s Representative conceded that, in light of the Panel’s findings, it may determine that the sanctions of no further action, mediation and a Caution Order may not be appropriate in this case. She reminded the Panel that the SP provides that a Conditions of Practice Order could be appropriate when the behaviour which was the subject of the allegation was capable of being remedied by the Registrant and submitted that the Registrant has a real desire to learn, to make a determined effort to improve her practice and that appropriate conditions could be formulated in this case. Appropriate conditions could include further training, restricting the Registrant’s practice to a certain practice setting, a period of assessment or an element of supervision, although she asked the Panel to consider the workability of direct supervision over a lengthy period. Finally, the Registrant’s Representative reminded the Panel of the evidence before it, from two Band 8 SLTs, that the Registrant had worked well in a role as a Band 6 Locum SLT in 2016 and 2017 and that this role had involved an element of support and supervision.

124. The Panel heard and accepted the advice of the Legal Assessor who reminded it that the purpose of sanction was not to be punitive. Rather, the primary function of a sanction is to address public safety issues although there will also be secondary considerations in the form of a deterrent effect on other professionals and in maintaining the reputation of the profession and public confidence in the regulatory process. She advised the Panel to firstly consider whether any sanction was necessary and, if it was, to consider sanctions in ascending order, settling with the least restrictive that met the Panel’s concerns. If a sanction is to be imposed, it must relate only to the facts proved or admitted. The Legal Assessor advised that all sanctions were available to the Panel, as the statutory ground found was misconduct. When determining the appropriate level of sanction, the Panel must be proportionate so that the sanction:

a) is appropriate in the circumstances;

b) secures the protection of the public;

c) takes account of the wider public interest;

d) is the least restrictive means of securing public protection;

e) is proportionate and strikes a proper balance between the rights of the Registrant and the protection of the public.

125. The Panel considered the mitigating and aggravating factors.

126. The Panel found that the matter had the following aggravating factors:

• the Registrant’s misconduct had had the potential to cause harm to Patient A;

• the Registrant had insufficient insight into her failings.

127. The Panel identified the following as mitigating factors:

• some failings were accepted by the Registrant prior to and during the proceedings;

• the Registrant had an unblemished regulatory record prior to and since these events;

• the Registrant had engaged fully with the HCPC;

• the significant CPD the Registrant had undertaken since she left the Trust.

128. The Panel first considered imposing no sanction but was mindful that this is an exceptional outcome and concluded that this would be inappropriate and insufficient to protect the public and uphold the public interest in the particular circumstances of this case. The Panel noted that there was no outstanding dispute as the Registrant had left the employment of the Trust. It therefore concluded that mediation was also an inappropriate sanction in this matter.

129. The SP identifies that a Caution Order may be an appropriate sanction for cases where the lapse is isolated, limited or relatively minor in nature; there is a low risk of recurrence; meaningful practice restrictions cannot be imposed; the conduct is out of character; and suspension from practice would be disproportionate. As this case involved serious failings over a four week period in relation to a very vulnerable patient who had suffered a stroke, and a risk of repetition has been identified, the Panel concluded that a Caution Order was inappropriate.

130. The Panel next considered a Conditions of Practice Order and considered the following provisions of the SP:

“A conditions of practice order is likely to be appropriate in cases where:

• the registrant has insight;

• the failure or deficiency is capable of being remedied;

• there are no persistent or general failures which would prevent the registrant from remediating;
• appropriate, proportionate, realistic and verifiable conditions can be formulated;

• the panel is confident the registrant will comply with the conditions;

• a reviewing panel will be able to determine whether or not those conditions have or are being met; and

• the registrant does not pose a risk of harm by being in restricted practice.”

131. The Panel was satisfied that the Registrant was capable of practising safely and effectively if restrictions were put in place. The misconduct relates to specific areas of practice which, in the Panel’s view, are capable of being remedied, and there is no evidence before the Panel of persistent or general failures which would prevent remediation. As the Panel has already determined, the Registrant is developing insight and the Panel was satisfied that the Registrant has demonstrated a willingness to comply with conditions as well as a desire to improve her professional practice. In the Panel’s view, there are workable conditions which can be formulated which will provide sufficient protection to the public, as well as uphold the wider public interest, but will also allow the Registrant to practise safely. The Panel was satisfied that a Conditions of Practice Order was a proportionate and appropriate sanction for the protection of the public; such an order was also appropriate to declare and uphold proper standards and maintain confidence in the profession. The Panel concluded that the Conditions set out at the end of this determination are adequate and proportionate in the circumstances of this case.

132. The Conditions of Practice Order will apply for a period of 18 months. The Panel believes that this will give the Registrant sufficient time to meet the Conditions, which include accessing and successfully completing an appropriate course, and demonstrate that the deficiencies in her practice have been addressed.

133. The Panel also considered whether a period of suspension would be appropriate, however it determined that a suspension would be disproportionate and punitive, as realistic and workable conditions could be formulated which would protect the public and enable the Registrant to address her deficiencies while in practice. The Panel also considered that a Suspension Order would be contrary to the public interest, which includes the retention of a registrant who is able to make a valuable contribution to the profession and to patients.

134. Before this order expires, it will be reviewed by a panel of the HCPC and the Registrant will be invited to attend that review hearing. At that review, the reviewing panel may be assisted by the Registrant providing up to date and relevant professional testimonials.

135. The Registrant can apply for an early review of this Conditions of Practice Order should she wish to do so but her case will be reviewed, in any event, before the Order expires.

Order

ORDER: The Registrar is directed to annotate the HCPC Register to show that, for a period of 18 months from the date that this Order takes effect (“the Operative Date”), you, Alice Treharne, must comply with the following conditions of practice:

1. You must undertake and pass a Royal College of Speech and Language Therapists accredited Post Basic Dysphagia Course and forward a copy of your results to the HCPC. This course must include a dysphagia caseload on acquired neurological patients (including stroke), direct and practical patient care, as well as the shadowing of experienced Speech and Language Therapists. You must maintain a portfolio of case studies detailing your contact with, and the care of, dysphagia patients, with specific regard to your assessments, hypothesis, rationale and plan of each patient’s care. You must identify a supervisor specialising in adult acquired dysphagia for the Supervisory Period of the course and provide a written report from that supervisor to the HCPC prior to the review of this Order.

2. You must not work as a Speech and Language Therapist in an acute stroke ward unless and until you have passed the course detailed in Condition 1 above, and produced evidence of your successful completion of the course to the HCPC.

3. You must provide a reflective piece of writing to the HCPC prior to the review of this Order. This piece of writing must: discuss your failures in your care of Patient A; demonstrate the insight you have gained into the reasons which led to those failures; demonstrate the insight you have gained into the risks identified in this hearing; and explain how your practice has changed since the incidents in question.

4. You must promptly inform the HCPC if you take up any employment for which your registration is required.

5. You must promptly inform the HCPC of any disciplinary proceedings taken against you by any employer.

6. You must inform the following parties that your Speech and Language Therapist 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);

C. any prospective employer in respect of your professional work, (at the time of your application);

D. any educational establishment in respect of your professional work (at the time of application).

Notes

Right of Appeal

You may appeal to the High Court in England and Wales against the Panel’s decision and the Order it has made against you.

Under Article 29(10) of the Health and Social Work Professions Order 2001, any appeal must be made within 28 days of the date when this notice is served on you. The Panel’s Order will not take effect until the appeal period has expired or, if you appeal, until that appeal is disposed of or withdrawn.

European Alert Mechanism

In accordance with Regulation 67 of the European Union (Recognition of Professional Qualifications) Regulations 2015, the HCPC will inform the competent authorities in all other EEA States that your right to practise has been restricted.

You may appeal to the County Court against the HCPC’s decision to do so. Any appeal must be made within 28 days of the date when this notice is served on you. This right of appeal is separate from your right to appeal against the decision and order of the Panel.

Interim Order

1. The Panel heard an application from the Presenting Officer for the Panel to impose an Interim Conditions of Practice Order on the Registrant’s registration to cover the appeal period. He submitted that such an order is necessary to protect the public and is otherwise in the public interest.

2. The Registrant’s Representative opposed the application. She reminded the Panel that its power to impose an interim order was a discretionary one, and invited the Panel to find that it was not necessary to do so. The misconduct found proved dates back to 2016 and the Registrant has been practising without restriction since that time, without incident or complaint. She told the Panel that the Registrant had no desire or intention to return to work in an acute stroke ward setting.

3. The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to paragraph 133 of the Sanctions Policy and to the HCPTS Practice Note on Interim Orders, which offers guidance on interim orders imposed at final hearings after a sanction has been imposed.

4. The Panel recognised that its power to impose an Interim Order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a Conditions of Practice Order has been imposed, and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel was, however, mindful of its findings in relation to the misconduct in this case and the risk of repetition.

5. The Panel decided to impose an Interim Conditions of Practice Order under Article 31(2) of the Health and Social Work Professions Order 2001, in the same terms as the substantive order, being satisfied that it is necessary for the protection of the public and is otherwise in the public interest to maintain confidence in this regulatory process. In reaching its decision to impose an Interim Order, the Panel had regard to the misconduct found proved, the resulting public protection concerns and the risk of repetition, and the full reasons set out in its decision for the substantive order. In the circumstances, the Panel was also satisfied that the risks are sufficiently grave that a fair-minded and informed member of the public would be troubled by the absence of such a restriction and that public confidence in the profession and the regulatory process would be undermined were the Registrant allowed to practise unrestricted during the appeal period.

6. The period of this order is for 18 months to allow for the possibility of an appeal to be made and determined.

7. If no appeal is made, then the Interim Conditions of Practice Order will be replaced by the Conditions of Practice Order 28 days after the Registrant is sent the decision of this hearing in writing.

 

 

Hearing History

History of Hearings for Mrs Alice Treharne

Date Panel Hearing type Outcomes / Status
22/08/2019 Conduct and Competence Committee Final Hearing Conditions of Practice
18/03/2019 Conduct and Competence Committee Final Hearing Adjourned part heard