Mrs Melanie J Englishby

Preliminary Matters

Service

1. The Panel heard that notice in respect of this hearing was sent by first class post and email to the Registrant’s registered address on 29 April 2019 in accordance with Rules 3 and 6 of the Conduct and Competence Procedure Rules 2003 (the Rules).

2. The Panel heard and accepted the advice of the Legal Assessor and determined that the notice had been served in accordance with the Rules.

Proceeding in the absence of the Registrant

3. Mr Dite, on behalf of the HCPC, invited the Panel to proceed in the absence of the Registrant. In the course of his submissions, he referred the Panel to the Registrant’s, 2 August 2018 and 11 April 2019, completed Response Proformas to the Notice of Allegation where the Registrant had indicated ‘no’ against questions whether she intended to appear or be represented at the hearing. She made no formal admissions to the charges. Mr Dite also referred the Panel to the Registrant’s completed Pre-Hearing Information Form received by the HCPC on 10 April 2019, and to an email dated 14 May 2019, from the Registrant to the HCPC. In her email the Registrant states:

“Just so you know I retired from the NHS 18/12 ago and have no interest in the outcome of this case. I will not be attending any hearing and think that this is a complete waste of money and time for everyone.”

4. Mr Dite also provided the Panel with further documents which had been sent to the HCPC by the Registrant on 12 February 2018 as supporting evidence in respect of her defence.

5. Mr Dite referred the Panel to the guidance contained in the HCPTS Practice Note on “Proceeding in the Absence of the Registrant” and submitted that, in the circumstances, it was appropriate for the Panel to exercise its discretion to proceed on the basis that the Registrant had chosen not to attend the hearing and had waived her right to appear. He submitted that the public interest in the expeditious disposal of the Allegation outweighed any disadvantage to the Registrant in proceeding in her absence. He noted that the Registrant had not sought an adjournment and submitted that no useful purpose would be served in adjourning the matter.

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

7. The Panel was mindful that the discretion to proceed in the absence of a Registrant is one which must be exercised with the utmost care and caution and that its decision should be guided by the overarching objective to protect the public. In reaching its decision, the Panel had regard to the nature and circumstances of the Registrant’s behaviour in absenting herself. The Panel took the view that it was clear from the Registrant’s correspondence with the HCPC that she was aware of the hearing and had determined not to attend. The Panel noted that the Registrant had not requested an adjournment but had submitted documents which she referred to in a covering letter dated 12 February 2018 as:

“all relevant documentation that needs to be considered as supporting evidence for my defence in the allegations brought against me by Milton Keynes University Hospital.”

The Panel considered this to be an indication that the Registrant expected the Panel to proceed with the hearing in her absence. Accordingly, the Panel concluded that the Registrant had voluntarily absented herself and had waived her right to be present.

8. The Panel considered it was unlikely the Registrant would attend a future hearing. In the circumstances, the Panel concluded that an adjournment would serve no useful purpose and determined that the public interest would best be served by proceeding. For all these reasons, the Panel agreed to proceed with the hearing in the absence of the Registrant.

Application to Offer No Evidence / Amend Particulars

9. Mr Dite applied to offer no evidence in respect of Particulars 3 and 9 (as outlined below) and to make several other amendments.

3. In relation to Patient C, you:

a) On 11 March 2015, marked an attended visit on the electronic diary system when there are no records for this visit.

b) Did not attend any further visits and / or record any further visits or contact between around 11 March 2015 and 29 April 2015.

9. On 19 January 2016, you:

a) Left work to attend a social event

b) Documented that you had gone home because you were unwell. 

10. Mr Dite informed the Panel that it was his application that Particular 1 be amended to include the matter currently set out at Sub-Particular 3(a). However, in respect of Sub-Particular 3(b) he said that the HCPC proposed to offer no evidence because KC, the only witness who could speak in support of this sub-particular, had indicated that she had no concern in relation to the matters alleged. Mr Dite said that in those circumstances it would be appropriate for Sub-Particular 3(b) to be withdrawn.

11. In respect of Particular 9, Mr Dite stated that none of the current HCPC witnesses are able to speak to the matters alleged. In relation to Mr Dite’s application to offer no evidence, the Panel sought clarification on the efforts the HCPC undertook to engage with the potential witness given Particular 9(b) involved an allegation of dishonesty. After a short adjournment, Mr Dite informed the Panel that the HCPC had identified one individual who might have been able to speak to the issue.  However, that individual had, by then, retired. He said the HCPC nevertheless wrote to that person inviting them to assist in the investigation, but no reply was received. Mr Dite submitted that in the absence of any evidence to support Particular 9, it would be fair and appropriate for the charge to be withdrawn.

12. In respect of the amendment to Sub-Particular 4(b), Mr Dite submitted that deleting the reference to “a conversation had” and replacing it with the words “an appointment held” would more accurately reflect the evidence without materially altering the case or causing any unfairness to the Registrant.

13. Mr Dite submitted that notice of the proposed substantive amendments had been sent to the Registrant by first class post on 8 April 2019. The Registrant had not lodged any objection.

14. Mr Dite submitted that if the Panel acceded to the substantive amendments, it would be appropriate to make consequential amendments as follows:

i) In respect of Particular 12, he submitted that if no evidence was offered in respect of Sub-Particulars 6(b) and 9(b), it would be grammatically appropriate to change the word “are” to “were”.

ii) In respect of Particular 14, he submitted that it would be appropriate to replace the reference to “6 – 7 and 8 – 9” with “6 – 9”.

iii) Further, Mr Dite submitted that it would be necessary to make consequential amendments to the numbering of all Particulars of Charge save for Particulars 1 and 2.

15. Mr Dite submitted that none of the proposed consequential amendments would alter the case against the Registrant, nor would they cause unfairness to any party.

16. The Panel accepted the advice of the Legal Assessor.

17. The Panel was satisfied that, in the circumstances outlined by Mr Dite, it would be appropriate for Sub-Particular 3(a) to be added to Particular 1 (as Sub-Particular 1(f)). Further, it would be appropriate and in the interests of justice to permit the HCPC to offer no evidence in respect of Sub-Particular 3(b) and Particular 9. In addition, the Panel was satisfied that neither the substantive amendment to Sub-Particular 4(b) nor the consequential amendments set out above would materially alter the case against the Registrant or cause unfairness to any party. For all these reasons, the Panel acceded to each of Mr Dite’s applications.

Hearing in Private

18. Mr Dite informed the Panel that proper exploration of the evidence in this case would involve reference to aspects of the Registrant’s private life. He submitted that those parts of the hearing should be heard in private in order to protect the private life of the Registrant.

19. The Panel had careful regard to Rule 10 (1) (a) of the Conduct and Competence Procedure Rules 2003 which provides:

“At any hearing the proceedings shall be held in public unless the Committee is satisfied that, in the interests of justice or for the protection of the private life of the registrant…or of any patient or client, the public should be excluded from all or part of the hearing.”

20. The Panel was satisfied that, for the protection of the Registrant’s right to a private life, the public should be excluded from those parts of the Hearing in which reference is made to the private life of the Registrant, and it so ordered.

Background

21. The Registrant was employed by Milton Keynes Hospital NHS Trust as a static Band 7 Physiotherapist. In 2014, she became the Team Manager of the Domiciliary Service and maintained a clinical caseload of physiotherapy patients.

22. Concerns about the Registrant’s practice as a Physiotherapist were raised to the Therapy Services Manager by KC, a static Band 6 Physiotherapist working with the Registrant in the Domiciliary Service. The Therapy Services Manager requested evidence of the concerns. KC collated patient records and medical notes that demonstrated her concerns. It was alleged that, on a number of occasions, the Registrant did not attend appointments or record notes from appointments with patients. KC stated that the Registrant failed to follow up on patients as required and provided inaccurate details in patients’ discharge letters. On 22 December 2015, when KC arrived back at the hospital at 11:35am, she noticed that the Registrant had signed out at 11am. She thought that was strange as she had seen the Registrant’s car parked at the hospital entrance. LS, a rotational Band 6 Physiotherapist, said the Registrant appeared to have failed to visit Patient M on 22 December 2015 and in her view had taken steps to conceal this.

Decision on Facts

23. In considering the particulars, the Panel was mindful that the burden of proving the facts is on the HCPC, that the Registrant is not required to prove anything and that any fact alleged is only to be found proved if the Panel is satisfied on the balance of probabilities.

24. In reaching its decision on the facts, the Panel has carefully considered all the documentary and oral evidence together with the written representations of the Registrant and the submissions of Mr Dite.

25. The Panel heard oral evidence from KC, who had been line managed by the Registrant. The Panel considered that her evidence was generally consistent with the documentary evidence on most disputed issues. She was clear and made concessions where appropriate.

26. The Panel also heard oral evidence from LS, who at the material time had been line managed by the Registrant. The Panel found that her evidence was generally consistent. However, she had a firm view of the events in question, and made a number of assumptions in relation to the events of 22 December 2015 which were unsupported by the available evidence. In addition, she did not know the patient. For example, she asserted that the Registrant could not have visited the patient because she did not see her with her coat and bag. She also formed a view early on the morning of 22 December 2015, that the Registrant’s conduct seemed to involve a “level of deceit” without a clear explanation.

27. The Panel accepted the advice of the Legal Assessor.

Particular 1(a) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

Marked an attended visit on the electronic diary system when there are no records for the visit and / or did not make case recordings in relation to the visit on 18 August 2014 in relation to Patient A.

28. KC referred the Panel to a screenshot of the electronic diary in relation to Patient A and also to Patient A’s discharge letter. The Panel noted that the diary showed that the Registrant had seen and assessed Patient A on 18 August 2014. Entries had been made in the ‘appointment comments’ box and in a further box on the right hand side of the diary which indicated that on 14 August 2014, Patient A had been referred and that the patient had been both treated and last seen on 18 August 2014.

29. KC said that she had checked Patient A’s records and that no notes or records had been saved in relation to the Registrant’s assessment and treatment of the patient over the period in question. KC stated that although “the diary notes that an appointment was booked for 18 August 2014 there are no notes to support this apparent visit...It was [the Registrant’s] responsibility to ensure visits were conducted as booked and that notes were written and inputted into the system correctly.”

30. The Panel had careful regard to each of these documents and satisfied itself that they contained no records for, or case recordings in relation to, the purported 18 August 2014 visit. On this basis, the Panel found this sub-particular proved. 

Particular 1(b) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

Marked an attended visit on the electronic diary system when there are no records for the visit and / or did not make case recordings in relation to the visit on 7 October 2014, in relation to Patient B.

31. The Panel had regard to Patient B’s referral form and discharge letter as well as a screenshot of the electronic diary relating to Patient B. 

32. The Panel noted that these records indicated that Patient B was referred to the Domiciliary Service on 29 September 2014 and that the Registrant discharged Patient B on 13 November 2014 having assessed the patient for a rollator frame. The Panel took into account the screenshot of the electronic diary which indicated that the Registrant had seen Patient B on 7 October 2014.

33. KC stated that “I have checked our system and can confirm that there are no notes recorded for Patient B to detail any assessment [the Registrant] may have conducted. There are no notes to support a visit to the patient on 7 October 2014 as indicated by the electronic diary.”

34. The Panel had careful regard to each of these documents and satisfied itself that they contained no records for, or case recordings in relation to, the purported 7 October 2014 visit. On this basis, the Panel found this sub-particular proved. 

Particular 1(c) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

Marked an attended visit on the electronic diary system when there are no records for the visit and / or did not make case recordings in relation to the visit on 25 November 2014, in relation to Patient D.

35. KC referred to Patient D’s records comprising a referral form, an assessment form, multidisciplinary notes, a discharge letter and a screenshot of the electronic diary relating to Patient D.

36. The Panel took into account the multidisciplinary notes which contained an entry by the Registrant dated 12 November 2014. In this, she set out her plan for Patient D and indicated that the patient should be reviewed in two weeks. The notes also indicated that a walking frame was ordered for Patient D on 13 November 2014. The notes contained no further entries in respect of Patient D.

37. KC said that although the electronic diary indicated that Patient D had last been seen by the Registrant on 25 November 2014, the records contained no notes in respect of that visit. The last entry in Patient D’s notes had been dated 13 November 2014.

38. The Panel had careful regard to each of these documents and satisfied itself that they contained no records for, or case recordings in relation to, the purported 25 November 2014 visit. On this basis, the Panel found this sub-particular proved.

Particular 1(d) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

Marked an attended visit on the electronic diary system when there are no records for the visit and / or did not make case recordings in relation to the visit on 10 March 2015, in relation to Patient F.

39. The Panel had careful regard to Patient F’s records including a referral form, an assessment form, multidisciplinary notes, a discharge letter and a screenshot of the electronic diary relating to Patient F.

40. KC said that Patient F had initially been assessed by the Registrant on 25 February 2015 having undergone hip replacement surgery. She stated: “According to the electronic diary, Patient F was seen by [the Registrant] on 10 March 2015...there is no record to support any visit that was conducted on that date.”

41. The Panel had regard to the medical records which had entries on 25 February 2015 and 31 March 2015 in which the Registrant had visited Patient F.

42. The Panel was satisfied that there were no records for, or case recordings in relation to, the purported 10 March 2015 visit. Accordingly, the Panel found this sub-particular proved.

Particular 1(e) – Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

Marked an attended visit on the electronic diary system when there are no records for the visit and / or did not make case recordings in relation to the visit on 16 December 2015, in relation to Patient L.

43. In considering this sub-particular, the Panel noted the allegation at Particular 9 that, in relation to the 16 December 2015 appointment, the Registrant had made a retrospective case entry on 19 January 2016. The Panel concluded that the electronic diary system had been marked as alleged and that the records did contain a case entry in relation to the December 2015 appointment which was marked as having been made retrospectively in January 2016.

44. In the circumstances, the Registrant had made an entry on the case recordings, albeit some time after the visit, the Panel could not be satisfied that there was no record for the 16 December 2015 and / or that the Registrant had not made case recordings in relation to that visit. Accordingly, the Panel found this sub-particular, as drafted, not proved.

Particular 1(f) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

Marked an attended visit on the electronic diary system when there are no records for the visit and / or did not make case recordings in relation to the visit on 11 March 2015, in relation to Patient E.

45. KC referred the Panel to an assessment form, discharge letter and screenshot of the electronic diary in relation to Patient E. She stated:

“The diary notes that the patient was seen on 4 March 2015 and then last seen on 11 March 2015. While there are notes in the assessment form to support the fact that the patient was seen on 4 March 20125, there are no multidisciplinary notes available for Patient E to evidence a visit on 11 March 2015.”

46. The Panel had careful regard to the documents and noted that an attended visit had been marked on the electronic diary system as alleged. Further it noted that the assessment form and the discharge letter contained no records for, or case recordings in relation to, the purported 11 March 2015 visit. Accordingly, the Panel found this sub-particular proved.

Particular 2(a) – Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient C, you: On 8 October 2014, marked an attended visit on     the electronic diary system when there are no records for this visit.

47. KC referred the Panel to Patient C’s referral form, multidisciplinary notes and discharge letter, as well as a screenshot of the relevant electronic diary. She stated that the Registrant’s involvement in the care of Patient C began when the Registrant and BR, a rotational Band 6 Physiotherapist saw the Patient on 3 October 2014. On that occasion, BR recorded in Patient C’s notes:

“[The Registrant] to review next week.”

48. KC informed the Panel that the Registrant’s diary indicated that she had seen Patient C on 8 October 2014. However, according to the notes, the Registrant saw the patient on 7 October 2014, and recorded that Patient C would be reviewed the following day. A subsequent note indicated that the Registrant did see Patient C on 9 October 2014. In response to questions from Mr Dite, KC conceded that the entry in the notes which recorded a 7 October 2014 meeting may have been a typographical error and that the meeting may have occurred as recorded in the Registrant’s diary on 8 October 2014. She told the Panel that if this was the case the discrepancy was, in her view, not serious.

49. The Panel had careful regard to all the documents referred to above. It was satisfied that the most likely explanation for the discrepancy was that the Registrant had seen Patient C on 8 October 2014, as recorded in her diary, and that there had been a simple typographical error in the notes which resulted in that meeting being incorrectly recorded as having taken place on 7 October 2014. On this basis, the Panel concluded that the notes do contain records of the 8 October 2014 visit, albeit that they may have been wrongly entered under the date 7 October 2014.

50. For the reasons set out above, the Panel could not be satisfied, on the balance of probabilities, that there are no records of the 8 October 2014 meeting. Accordingly, the Panel found this sub-particular not proved.

Particular 2(b) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient C, you: Did not attend any further visits and / or record any further visits or contact between around 9 October 2014 and 22 October 2014.

51. KC again referred the Panel to Patient C’s records. She stated that when the Registrant had seen Patient C on 9 October 2014 she had noted that the patient was to be reviewed in one to two weeks. However: “The next entry is then dated 22 October 2014 in which it is only stated ‘Review 1/12 at request of care staff.’…On 22 October 2014, [the Registrant] has not made any contact with the patient and has simply stated that the patient needed a review in one month…The notes also show that there were no visits from 9 October 2014 onwards.”

52. The Panel had careful regard to Patient C’s records. It was satisfied that these did not record any further visits or contact between around 9 October 2014 and 22 October 2014. In the absence of any information to the contrary, the Panel was satisfied on the balance of probabilities that the Registrant had not attended any further visits during this period. Accordingly, the Panel found this sub-particular proved.

Particular 2(c) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient C, you: Did not attend any further visits and / or record any further visits or contact between 22 October 2014 and 21 November 2014.

53. KC again referred the Panel to Patient C’s records. She observed that: “On 22 October 2014, [the Registrant] has not made any contact with the patient and has simply stated that the patient needed a review in one month. There is no information to explain where she got that from. The notes also show that there were no visits from 9 October 2014 onwards.”

54. The Panel had careful regard to Patient C’s discharge letter. This was signed by the Registrant and dated 21 November 2014. It reported that Patient C had been referred to the service on an unspecified date after being discharged from hospital, also on an unspecified date. The discharge letter refers to Patient C’s capabilities at that time and reports on her progress, or lack of it, “in the home”. The letter states that: “Patient C has now been discharged from our case load as she is so variable in her mood and has not made any great improvement. The care staff are happy to offer her her frame to transfer when she is co-operative otherwise she will be hoisted out of her bed as and when she wishes.”

55. The Panel considered that while the information contained in the letter could have been obtained during the course of a face to face visit or visits, it could equally have been obtained as a result of telephone or email exchanges with the home. But the Panel was unable to find in any of the other documents put before it any record of visits or contact between 22 October 2014 and 21 November 2014.

56. The Panel was satisfied on the balance of probabilities that the Registrant had not attended or recorded any further visits or contact during this period. Accordingly, the Panel found this sub-particular proved.

Particular 2(d) – Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient C, you: Did not record accurate information within the discharge letter dated 21 November 2014.

57. KC stated that: “The information subsequently contained in the discharge letter dated 21 November 2014 cannot be found in the patient’s notes. It looks as if [the Registrant] did not finish the episode of treatment for this patient. She was not appropriately followed up on and the care reflected in the discharge letter is not accurate or supported by the patient notes.” Further, KC told the Panel: “Because the information is not in the notes it cannot be said that it is accurate.”

58. Further, while it had received evidence that some key information recorded in the notes had not been recorded in the discharge letter, the Panel had not received sufficient evidence for it to be satisfied, on the balance of probabilities, that the Registrant did not record accurate information in the discharge letter dated 4 January 2016. In considering the question of whether the information recorded in the letter was not accurate, the Panel considered that absence from the notes would not of itself render the information inaccurate.

59. For the reasons set out above, the Panel found this sub-particular, as drafted, not proved on this basis.

Particular 3(a) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient I, you: Did not attempt contact and / or attend a further visit between 29 October 2015 and 7 December 2015.

60. KC referred the Panel to Patient I’s multidisciplinary notes and to an email dated 18 February 2016 and addressed to herself from AK, a Neurological Clinical Nurse Specialist. The email stated that Patient I had requested physiotherapy even though the patient had just been discharged from the Registrant’s care.

61. KC referred the Panel to a 29 October 2015 entry in Patient L’s multidisciplinary notes in which the Registrant had noted her plan to ring the patient in 2 – 3 weeks’ time. KC stated; “The next entry in the patient’s notes is not until 7 December 2015, some 6 weeks after…” 

62. The Panel had careful regard to the Registrant’s written representations in respect of this patient. She stated: “Unfortunately there was an initial delay from my first contact at the end of October to the next contact due to several episodes of annual leave and the increased tiredness from only returning to normal hours in November 2015 following my phased return.”

63. In all the circumstances, the Panel was satisfied on the balance of probabilities that the Registrant did not attempt contact and / or attend a further visit between 29 October 2015 and 7 December 2015. Accordingly, the Panel found this sub-particular proved.

Particular 3(b) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient I, you: Did not make contemporaneous case recordings in that you made a retrospective case entry on 19 January 2016 in relation to an appointment held on 16 December 2015.

64. KC referred the Panel to Patient I’s multidisciplinary notes and to an entry made by the Registrant in respect of a telephone call on 16 December 2015. The entry is clearly marked “19.1.16. 9.50 Written in retrospect.”

65. The Panel had careful regard to the relevant entry and was satisfied that the Registrant had made a retrospective case entry as alleged. Accordingly, the Panel found this sub-particular proved.

Particular 4(a)(i) – (iii) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient J, you: Did not conduct an adequate assessment on 4 November 2015 in that you did not assess and / or record:

(i) any drug history;

(ii)  the patient’s muscle strength;

(iii) what exercises were shown to the patient.

66. KC referred the Panel to Patient J’s assessment form and multidisciplinary notes. She stated: “I note that [the Registrant] has not noted the patient’s drug history…[the Registrant] has not conducted or documented a proper physical assessment of the patient to look at the patient’s muscle strength…She says that leg exercises were shown to the patient but there is no detail or note to indicate what exercises were shown.”

67. KC stated that: “A full drug history is required because this can impact on the patient’s treatment for example, if a patient is given pain medications prior to treatment, the physiotherapist’s awareness of the side effects of the medication is important because it may effect your choice of treatment.”

68. With regard to the physical assessment, KC also stated that the Registrant “should have used the Oxford grading muscle assessments.”

69. The Panel had careful regard to the relevant documents and was satisfied from these that the Registrant had not recorded any of the matters listed. The Panel inferred that the lack of recording of the matters in Particulars 4(i) – (iii) meant they had not been assessed. The Panel then considered whether not recording / conducting these aspects meant the assessment was not adequate. In the Panel’s view, these were routine but material aspects of an assessment which, if not assessed or recorded, would render the assessment not adequate. Accordingly, the Panel found this particular proved in its entirety.

Particular 4(b) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient J, you: Did not provide a follow up review after 4 November 2015.

70. KC referred the Panel to Patient J’s assessment form and multidisciplinary notes. She noted the assessment that is recorded as having been undertaken on 4 November 2015 and stated: “Unfortunately, there is no record of the Registrant then seeing Patient J again. She has failed to review the patient within two weeks as stated in her notes from the assessment. There does not appear to be any follow up with this patient following her assessment.”

71. The Panel had careful regard to the multidisciplinary notes and was satisfied that there was no record before it of any follow up review after 4 November 2015. In the circumstances, the Panel concluded that it was more likely than not that the Registrant had not provided a follow up review after 4 November 2015. Accordingly, the Panel found this sub-particular proved on the balance of probabilities.

Particular 4(c) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient J, you: Did not record accurate information within the discharge letter dated 4 January 2016.

72. KC referred the Panel to Patient J’s assessment form, multidisciplinary notes and discharge letter. She noted that the discharge letter “says that the patient declined physiotherapy intervention. There is nothing in the notes to suggest/support that. To the contrary, the patient consented to an assessment and was engaging and compliant according to the assessment notes. There is no record that she declined treatment.”

73. The Panel had careful regard to the documents and satisfied itself that there is nothing in the notes to support the discharge letter’s report that Patient J declined physiotherapy intervention. The Panel recognised, that in considering the accuracy of information recorded in the letter, absence of that information from the notes would not of itself render information contained in the discharge letter inaccurate. However, to the extent that the discharge letter was contradicted by the assessment notes as highlighted by KC, the Panel was satisfied on the balance of probabilities that this sub-particular has been made out.

Particular 5(a) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient M on 22 December 2015, you: Marked an attended visit on the electronic diary system when there are no physiotherapy records for this visit.

74. KC referred the Panel to a screenshot of the Registrant’s Tynedale diary from the morning of 22 December 2015. She stated: “The diary noted [the Registrant] attended an appointment with patient M from 11am to 11.45am…I also reviewed [the Registrant’s] paper diary and the appointment was not recorded there.”

75. KC also referred the Panel to Patient M’s multidisciplinary notes. She stated: “These notes indicate that Patient M was seen by AP and the Registrant on 14 December 2015 for the first time…The notes indicate that the Registrant then saw Patient M on 7 January 2016. If [the Registrant] had seen Patient M on 22 December 2015, notes from that visit should have been recorded and available within this document.” KC told the Panel that there was no such record.

76. The Panel had careful regard to the written representations of the Registrant. In these she stated: “I went off on annual leave completely forgetting that I had not recorded the visit in the patient’s notes. The next day when I returned to work…I had administrative tasks to attend to…Unfortunately under a considerable amount of pressure at home and at work my organisational skills at this time were under strain and as a result I omitted to write up the notes.”

77. In the circumstances set out above, the Panel was satisfied that the Registrant had marked an attended visit on the electronic diary system when there are no physiotherapy records for this visit. Accordingly, the Panel found this sub-particular proved.

Particular 5(b) – Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you: In relation to Patient M, on 22 December 2015, you:  Falsely represented that you had attended a visit in that you:

(i) Signed out and back into the physiotherapy department;

(ii) Made a travel claim.

78. KC told the Panel that on 22 December 2015, she had noted that “the Hospital’s sign in sheet indicated that [the Registrant] had signed out at 11 am…at a later time [the Registrant] updated the sign in sheet to indicate she had signed back in at 11.30am.”

79. The Panel had careful regard to the written account of the Registrant where she stated “I called the patient sometime during the early part of the morning on 22 December 2015…As it happened there was an urgent need to visit the patient at home on patient safety grounds…I knew it would be a quick unscheduled visit as the patient lived opposite the back gates of the hospital…less than a 5 minute journey by car…”

80. In her written representations, the Registrant explained that: “The reason for the sudden visit was that the patient had explained on the phone that she was using [her] frame to go up and down the stairs which was clinically unsafe.” The Registrant stated that she had gone to the porta cabin to pick up a rollator frame. She said: “I attended the patient, supplied her with the rollator frame adjusted to the correct height. I did not need to assess the patient’s ability to use the frame as she was already using another frame…I returned to the hospital…signed back in at 11.30 and returned to the computer in the office to record the visit on Tyndale.”

81. The Panel noted that both KC and LS confirmed that the account of the Registrant was “plausible” in terms of time if Patient M lived where the Registrant said she did. KC confirmed that the Registrant could acquire the rollator frame without completing any form for its release. LS stated that the timeframe set out in the Registrant’s written account would not provide sufficient time for a full assessment of the patient but could for “equipment delivery” of the frame.

82. In all the circumstances, the Panel considered that the HCPC had adduced insufficient evidence for it to be satisfied, on the balance of probabilities, that the Registrant had falsely represented that she had attended a visit to Patient M on 22 December 2015. Accordingly, the Panel found this sub-particular not proved.

Particular 6(a) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient N, On 5 January 2016, marked that you attended a visit on the electronic diary system when there are no physiotherapy records for this visit.

83. KC referred the Panel to Patient N’s referral forms dated 14 December 2015 and 22 December 2015, and to Patient N’s assessment form and multidisciplinary notes as well as a screenshot of the Registrant’s Tynedale diary for 5 January 2016 which records an appointment with Patient N on that date.

84. The Panel had careful regard to the documents and satisfied itself that while the diary records the 5 January visit, there are no physiotherapy records for this visit.

85. The Panel also had careful regard to the Registrant’s written representations and noted her account that: “The notes for all other patients seen on that day were completed correctly but I had no recollection why these were omitted.”

86. In these circumstances, the Panel was satisfied that this sub-particular has been made out.

Particular 6(b) – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient, N you: Did not make contemporaneous case recordings in that you made a retrospective case entry on 19 January 2016 for this visit.

87. KC referred the Panel to Patient N’s multidisciplinary notes for 5 January 2016 which are clearly marked “19.1.16 Written in retrospect” and signed by the Registrant.

88. The Panel had careful regard to Patient N’s multidisciplinary notes for 5 January 2016 and also to the Registrant’s written representations which confirm that “the notes had been updated and written in retrospect on 19th January 2016.”

89. In these circumstances, the Panel was satisfied that the Registrant had acted as alleged in this sub-particular. Accordingly, the Panel found this sub-particular proved.

Particular 7(a) – Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient H, you: Did not complete and / or record an adequate assessment at an appointment on 22 October 2015.

90. The Panel had careful regard to Patient H’s Physiotherapy Primary Total Hip Replacement Assessment Form which had been signed by the Registrant. The Panel also noted that the Registrant had made an entry in every check point in the column for 22 October 2015. In the Panel’s view, this was a routine form which the Registrant had completed with some relevant information. In the circumstances, the Panel was not satisfied that the Registrant did not complete and / or record an adequate assessment as alleged. Accordingly, this sub-particular is found not proved.

Particular 7(b) – Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient H, you: Did not make case records for the appointment on 11 or 12 January 2016.

91. The Panel had careful regard to Patient H’s Physiotherapy Primary Total Hip Replacement Assessment Form which had been signed by the Registrant. The Panel noted that the Registrant had made an entry in every check point in the column for 11 January 2016. In the circumstances, the Panel could not be satisfied that the Registrant did not make case records for the appointment as alleged. Accordingly, this sub-particular is found not proved.

Particular 7(c) – Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient H, you: Did not record accurate information within the discharge letter dated 19 January 2016.

92. In reaching a decision, the Panel had careful regard to Patient H’s discharge letter dated 19 January 2016. It noted that this described the Patient’s progress since referral and recorded “His 10 MTW improved from 27 secs to 12 secs a 55% improvement.”

93. The Panel also had careful regard to Patient H’s Assessment Summary Form dated 22 October 2015. It noted that in respect of a 10 MTW outcome measure, Patient H’s score on assessment had been 27 seconds and that on discharge his score had been 12.3 seconds, representing a 55.6% improvement.

94. In her oral evidence, KC accepted that the discharge letter had not been inaccurate.

95. In the circumstances, the Panel was not satisfied that the Registrant did not record accurate information within the discharge letter. Accordingly, the Panel found this sub-particular not proved.

Particular 8 - Found Not Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient D, you sent a discharge letter dated 15 December 2014 noting that the patient’s timed walk had improved without having conducted and / or recorded this assessment.

96. The Panel had careful regard to Patient D’s discharge letter and satisfied itself that the letter did note that Patient D’s timed walk had improved.

97. The Panel also had careful regard to Patient D’s assessment form dated 5 November 2014. It noted that this was signed by the Registrant and recorded that on assessment Patient D’s timed walk score had been 1 minute 28 seconds with a rollator. The form also recorded Patient D’s score on discharge as 12 seconds.

98. In the circumstances, the Panel was not satisfied, on the balance of probabilities, that the Registrant had sent the discharge letter without having conducted and / or recorded this assessment. Accordingly, the Panel found this particular not proved.

Particular 9 – Found Proved

Whilst employed as a Physiotherapist at Milton Keynes Hospital, you:

In relation to Patient L, you did not make contemporaneous case recordings in that you made a retrospective case entry on 19 January 2016 in relation to an appointment on 16 December 2015.

99. During the course of her evidence, KC referred the Panel to Patient L’s 16 December 2015 assessment form. The Panel had careful regard to this form and noted that it was signed by the Registrant and was clearly marked in three places as being written in retrospect on 19 January 2016.

100. The Panel also had careful regard to the written representations of the Registrant which state that although the notes were started on 16 December 2015 they were completed in retrospect on 19 January 2016.

101. In the circumstances, the Panel was satisfied that the Registrant had acted as alleged. Accordingly, the Panel found this sub-particular proved.

Particular 10 – Found Not Proved

The actions alleged at particulars 5(b) were dishonest.

102. In light of the Panel’s finding that Particular 5(b) was not proved, this Particular was incapable of proof. Accordingly, the Panel found it not proved.

Decision on Grounds

103. Having made its findings on the facts, the Panel went on to consider whether the matters found proved constituted misconduct and / or lack of competence. In this regard, the Panel had careful regard to the oral and written submissions of Mr Dite and accepted the advice of the Legal Assessor. The Panel was mindful that it must exercise its own independent judgement in reaching a decision on statutory grounds and impairment.

104. In relation to lack of competence, Mr Dite invited the Panel to have regard to the 2013 edition of the HCPC “Standards of Proficiency for Physiotherapists”. He referred the Panel to the cases of Calhaem v GMC [2017] and Holton v GMC [2006]. He submitted that it would be open to the Panel to find that the facts found proved demonstrate a lack of competence, but the Panel might decide that this is really a case about misconduct.

105. In considering lack of competence, the Panel took account of the fact that the matters found proved occurred over a period of approximately 18 months and involved 11 patients. It concluded that this might represent a fair sample of the Registrant’s work. However, the Panel considered from the evidence before it, and in particular the Registrant’s responses to questions put to her at investigatory interview by the Trust on 8 March 2016, that she knew what was expected of her, she was familiar with the processes and had worked within the Domiciliary Service for some time but she had failed to undertake the reviews and complete notes. In addition, during the course of the investigatory interview the Registrant did not provide an adequate explanation for her errors and omissions. For these reasons, the Panel concluded that the Registrant’s failings did not constitute lack of competence.

106. In relation to misconduct, Mr Dite invited the Panel to have regard to the 2012 edition of the HCPC “Standards of conduct, performance and ethics”. He referred the Panel to the case of Roylance v GMC (No 2). He submitted that the failings of the Registrant found by the Panel were serious and amounted to misconduct.

107. The Panel was mindful that misconduct involves a falling short of the professional standards that would be proper in the circumstances. It considered that the Registrant had repeatedly fallen below the standards to be expected of a registered Physiotherapist and had breached the following standards as set out in the August 2012 edition of the HCPC “Standards of conduct, performance and ethics”:

• Standard 1 (You must act in the best interests of service users);

• Standard 7 (You must communicate properly and effectively with service users and other practitioners);

• Standard 10 (You must keep accurate records); and

• Standard 12 (You must limit your work or stop practising if your performance or judgment is affected by your health).

108. The matters found proved occurred over an extended period of time, and involved several patients who were put at risk of serious harm.

109. The Panel considered the Registrant failed to make records either in a timely fashion, or at all, in relation to visits to patients; failed to conduct visits and / or reviews in relation to vulnerable patients some of whom were less able to request or complain about not receiving services themselves. She failed to conduct and / or record adequate assessments. The Panel considered this amounted to a serious departure from proper professional standards.

110. Furthermore, although the Registrant had various issues going on in her personal and family life, if this was the reason for her failures then, as a registered professional, she had an obligation to recognise that she was not able perform her job and take appropriate action.

111. In all the circumstances, the Panel concluded that the Registrant’s failings were so serious as to constitute misconduct going to her fitness to practise.

Decision on Impairment

112. The Panel then went on to consider whether the Registrant’s fitness to practise is impaired by reason of her misconduct. It had careful regard to all the evidence before it and to the submissions of Mr Dite. It accepted the advice of the Legal Assessor and had particular regard to the HCPC’s Practice Note “Finding that Fitness to Practise is ‘Impaired’.”

113. Although the Panel had not had the benefit of hearing from the Registrant in person, it had careful regard to the Registrant’s written submissions and representations and to the documents provided to the Panel on her behalf.

114. The Panel first considered the personal component of impairment. In assessing the likelihood of repetition, the Panel had particular regard to the issues of insight and remediation. The Panel was concerned that the information available to it demonstrated an absence of insight. In particular, at her investigation interview at the Trust, the Registrant appeared not to recognise that patient care had been compromised and seemed unaware of the risks to which patients had been exposed by her failings. The Panel was provided with no evidence of remediation. In all the circumstances, the Panel concluded that, were the Registrant to work as a Physiotherapist again, there would be a high risk of repetition of misconduct of the kind found in this case.

115. The Panel then went on to consider the public component of impairment. The Panel had careful regard to the important public policy issues identified by Silber J in the case of Cohen v GMC [2008]:

“Any approach to the issue of whether .... fitness to practise should be regarded as ‘impaired’ must take account of ‘the need to protect the individual patient, and the collective need to maintain confidence in the profession as well as declaring and upholding proper standards of conduct and behaviour.”

116. The Panel asked itself whether the need to uphold proper professional standards and public confidence in the profession, would be undermined if a finding of impairment were not made in the particular circumstances of this case and the Panel considered that it would. Maintaining records is a fundamental requirement of the profession of physiotherapy and in the Panel’s view, the public would be appalled to learn of the Registrant’s failings in this case.

117. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired.

Decision on Sanction

118. The Panel next considered what, if any, sanction to impose on the Registrant’s registration. It had careful regard to all the evidence put before it and to the submissions of Mr Dite. It accepted the advice of the Legal Assessor.

119. Mr Dite drew the Panel’s attention to the HCPC’s “Sanctions Policy” and submitted that sanction is a matter for the Panel’s own independent judgment.

120. In reaching its decision the Panel has taken into account the principle of proportionality and the need to balance the competing interests of the Registrant with the overriding objective to protect the public.

121. In reaching its decision, the Panel had regard to all the circumstances, and considered the weight it should attach to the following aggravating and mitigating factors in the case:

Aggravating Factors

• The length of time covered by the allegations;

• The number of patients involved;

• The pattern of behaviour demonstrated by the misconduct;

• The risk of harm to patients, some of whom were particularly vulnerable;

• The Registrant’s lack of insight and remediation;

• The high risk of repetition of such misconduct.

In reaching a decision, the Panel gave particular weight to the risk of harm to vulnerable patients.

Mitigating Factors

• The Registrant had been experiencing challenging circumstances in her personal and family life;

• The Registrant’s perception of a lack of genuine support in her working environment;

• The Registrant had worked at the Trust since 2001;

• There have been no previous regulatory findings made against the Registrant.

In reaching a decision, the Panel gave particular weight to the significant challenges she was experiencing in her personal and family life.

122. The Panel first considered whether it would be appropriate to impose no sanction in this case. It gave careful consideration to Paragraphs 97 and 98 of the “Sanctions Policy”. The Panel noted its earlier findings that the Registrant has demonstrated a lack of insight and remediation. In light of this, the Panel concluded that there is a high risk of repetition of misconduct. In those circumstances, the Panel concluded that the imposition of no sanction would neither protect the public nor serve the wider public interest in maintaining confidence and declaring and upholding proper standards. In the Panel’s view, such a course would be wholly inappropriate.

123. The Panel next considered the imposition of a Caution Order. It gave careful consideration to the factors set out in paragraphs 99 – 102 of “Sanctions Policy”. The Panel considered its findings that:

• The misconduct was serious and repeated over an extended period of time;

• There is a high risk of repetition;

• The Registrant has demonstrated no insight into the seriousness of the risks to patients and the Panel has received no evidence of remediation.

124. In these circumstances, the Panel concluded that such an order would be neither appropriate nor sufficient.

125. The Panel then considered the imposition of a Conditions of Practice Order. It gave careful consideration to Paragraphs 105-115 of the “Sanctions Policy”. The Panel considered that it might be possible to formulate conditions in respect of the Registrant’s failings. However, the Panel had careful regard to Paragraph 107 of the “Sanctions Policy” which states: “Conditions will only be effective in cases where the registrant is genuinely committed to resolving the concerns raised and the panel is confident they will do so.” 

126. The Panel also had regard to the Registrant’s 14 May 2019 email to the HCPC in which she stated:

“Just so you know I retired from the NHS 18/12 ago and have no interest in the outcome of this case. I will not be attending any hearing and think that this is a complete waste of money and time for everyone.”

127. In light of this, the Panel considered that the Registrant would be unlikely to co-operate with a Conditions of Practice Order. Accordingly, the Panel determined that a Conditions of Practice Order is neither sufficient nor appropriate at this time.

128. The Panel went on to consider the imposition of a Suspension Order. It gave careful consideration to Paragraphs 118-126 of the “Sanctions Policy”. The Panel considered that the Registrant’s misconduct was not incompatible with her remaining on the Register. Moreover, such an order would protect the public and would have a deterrent effect, sending a clear message that the Registrant’s misconduct was unacceptable and must not be repeated.

129. The Panel did consider whether a Striking Off Order might be the appropriate sanction in this case. It gave careful consideration to Paragraphs 127-132 of the “Sanctions Policy”. It concluded that the nature and gravity of the concerns in this case were not such that any lesser sanction would be insufficient to protect the public, public confidence in the profession, and public confidence in the regulatory process. In the Panel’s view, a Striking Off order would be disproportionate.

130. For this reason, the Panel determined to impose a Suspension Order on the Registrant’s registration. In considering the duration of this order, the Panel had careful regard to Paragraphs 122-126 of the “Sanctions Policy”.

131. The Panel concluded that a 12 month Suspension Order would be appropriate and proportionate in view of the gravity of her misconduct, and the potentially serious consequences to patients. It would protect the public, maintain public confidence in the profession and the HCPC and declare and uphold proper standards of conduct and performance. In addition, it would provide the Registrant with an opportunity to reflect on her failings as identified by the Panel’s decision, and would provide her with sufficient time to take steps towards the remediation of her misconduct should she wish to do so.

132. In all the circumstances of this case, the Panel determined to impose a 12 month Suspension Order. That order must be reviewed by another Panel prior to its expiry. The reviewing panel may be assisted by the following:

• The Registrant’s engagement with the process and attendance at the hearing;

• Evidence of any relevant  courses (such as record keeping) and / or professional development undertaken by her during the period of suspension;

• A reflective piece from the Registrant, following a recognised model. This should demonstrate the Registrant’s reflection on the gravity of her failings, the importance of appropriate record keeping, and the potential impact of her misconduct on patient safety, professional colleagues and the reputation of the profession;

• Testimonials relating to any work undertaken in an employment and / or voluntary capacity after this hearing;

• Any other information or evidence which the Registrant considers may be of assistance to the Reviewing Panel.

ORDER: The Registrar is directed to suspend the registration of Mrs Melanie J Englishby for a period of 12 months from the date this Order comes into effect.

Interim Order

1. The Panel heard an application from Mr Dite to cover the appeal period by imposing an 18 month Interim Suspension Order on the Registrant’s registration. He submitted that such an order is necessary to protect the public and is otherwise in the public interest.

2. The Panel heard and accepted the advice of the Legal Assessor. It had careful regard to Paragraphs 133-135 of the “Sanctions Policy”. The Panel noted that the Registrant had been informed, in the Notice of Hearing dated 29 April 2019, that if this Panel found proved the allegation against her and imposed a sanction which removed, suspended or restricted her right to practise, the HCPC may make an application to the Panel to impose an interim order to cover any appeal period. For the reasons set out in its earlier decision to commence the hearing in the absence of the Registrant, the Panel determined that it would also be fair, proportionate and in the interests of justice to consider Mr Dite’s application.

3. 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 Suspension Order has been imposed. The Panel took into consideration the impact such an order would be likely to have on the Registrant. However, the Panel was mindful of its findings in relation to the lack of insight and remediation and that there is a high risk of repetition of misconduct of the kind found by the Panel. In the circumstances, the Panel considered that not to impose an order would be inconsistent with its finding that a substantive Suspension Order is required. Public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were not made subject to an interim order during the appeal period.

4. The Panel makes an Interim Suspension Order under Article 31(2) of the Health and Social Work Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.  This Order will expire: (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.

History of Hearings for Mrs Melanie J Englishby

Date	Panel	Hearing type	Outcomes / Status
27/07/2020	Conduct and Competence Committee	Review Hearing	Struck off
05/08/2019	Conduct and Competence Committee	Final Hearing	Suspended