Miss Zoe L Flello

Profession: Physiotherapist

Registration Number: PH54840

Hearing Type: Review Hearing

Date and Time of hearing: 10:00 06/12/2019 End: 13:00 06/12/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

The following allegation was considered by a panel of the Conduct and Competence Committee at the substantive hearing on 3-7 December 2018.

During the course of your employment as a Physiotherapist at Milton Keynes University Hospital:

1. In the case of Child A, you:

a) Did not record and / or place on file in a timely manner, contemporaneous treatment notes for appointments on 30.03.16 and / or 20.04.16 and / or 25.05.16;

b) did not record and / or place on file treatment notes for appointments on 07.05.15 and / or 07.10.15 and / or 15.10.15;

c) did not assess and / or record objective measures adequately and / or at all;

d) did not consistently record an analysis of whether the treatment was effective;

e) did not provide and / or record clear goals for the patient.

2. In the case of Child B, you:

a) did not record and / or place on file in a timely manner, contemporaneous treatment notes for appointments on 30.03.16 and / or 20.04.16 and / or 25.05.16;

b) did not record and / or place on file treatment notes for appointments on 07.05.15 and / or 07.10.15 and / or 27.07.16;

c) did not assess and / or record objective measures adequately and / or at all;

d) did not consistently record an analysis of whether the treatment was effective;

e) did not provide and / or record clear goals for the patient.

3. In the case of Child C, you:

a) [Not Proved]

b) did not consistently record an analysis of whether treatment was effective;

c) did not consistently record an adequate plan of what the patient’s goals were and / or when outcome measures would be retested;

d) did not record and / or place on file in a timely manner, contemporaneous notes for the contact with the patient’s father on 03.02.2016.

4. In the case of Child D, you:

a) did not undertake and / or record treatment notes for patient appointments on 22.05.14 and / or 04.12.14;

b) did not see and / or record that you had seen the patient between 19.12.14 and 01.07.15;

c) noted a deterioration in the patient’s condition on 02.07.15 but did not:

i. contact and / or record your contact with the patient’s parents to update them; and / or

ii. plan to offer treatment until approximately two months later; and / or

iii. provide and / or record that you had provided the patient with a home exercise plan.

d) did not see and / or record that you had seen the patient between 03.07.15 and 21.10.15;

e) [Not Proved]

f) did not consistently record an analysis in your notes of whether treatment was effective.

5. In the case of Child E, you:

a) did not set and / or record goals and / or outcome measures to reassess the patient;

b) did not provide and/or record the provision of treatment to the patient;1

c) did not record justification for continuing with regular appointments.

6. In the case of Child F, you:

a) [Not Proved]

b) did not consistently record sufficient detail with regards to goals and / or outcomes;

c) [Not Proved]

7. In the case of Child G, you:

a) [Not Proved]

b) did not see the patient between 17.12.2015 and September 2016;

c) did not consistently record an adequate plan in the patient’s notes and merely stated “continue”;

d) did not consistently set and / or record goals and / or outcome measures to reassess the patient;

e) did not consistently record an analysis of the patient's problems and / or whether physiotherapy treatment was effective;

f) did not set and / or record any home exercise programme for the patient, despite its importance following surgery.

8. In the case of Child H, a patient suffering from a worsening gait pattern and falls, you:

a) did not conduct and / or record the following assessments of neurotesting for neuromuscular weakness:

i. an assessment of the patient’s strength; and / or

ii. eccentric control; and / or

iii. any testing for fatigue; and / or

iv. an assessment of how the patient gets off the floor;

b) did not include a copy of and / or record details of the patient's exercise programme in their notes;

c) did not provide and / or record clear plans and goals.

9. In the case of Child I, you:

a) did not document in sufficient detail the treatment provided to the patient;

b) did not consistently record an analysis of the patient's condition and / or whether treatment was effective;

c) did not set and / or record goals and / or outcome measures to reassess the patient.

10. In the case of Child J, you:

a) in respect of the use of equipment at appointment on 17.09.15 did not:

i. obtain a signed copy of the safety advice sheet and / or place this on file; and / or

ii. provide and / or record that safety advice was given on this date.

b) did not record in sufficient detail the patient's treatment;

c) did not record and / or place on file in a timely manner, treatment notes for the patient's appointment on 10.12.15.

11. In the case of Child K, you:

a) [Not Proved]

b) did not set and / or record goals and / or outcome measures to reassess the patient;

c) did not consistently record an adequate analysis of the patient's condition and / or whether treatment was effective;

d) on 26.02.16 and 22.06.16 recorded that a plan was in place to visit the patient's school to run through the exercise programme but did not conduct and / or record a subsequent school visit.

12. In the case of Child L, you did not carry out and / or record strength or stability observations.

13. In the case of Child M, you:

a) did not action the plan to order different accessories arrange and / or record arranging for a company representative to complete an assessment of the appropriate equipment to meet Child M’s needs, despite identifying the need for alternative equipment on 28 October 2015;

b) did not attend and / or record attending the patient between 28.10.15 and 23.08.16;

c) Attended an appointment on 08.09.16, during which you:

i. set up the standing frame without trialling Child M in the standing frame; and / or

ii. agreed for the mother to adjust the standing frame herself.

14. In the case of Child N, you:

a) did not record the treatment the patient received;

b) did not consistently record an adequate analysis of the patient's condition;

c) [Not Proved]

15. In the case of Child O, you:

a) did not clearly record an analysis of the patient's condition;

b) did not set and / or record goals and / or outcome measures to be achieved;

c) did not arrange and / or record arranging a school visit as you indicated you would do in the notes of appointment on 03.06.15.

d) did not take steps and / or record those steps taken to order equipment as you indicated you would do in the note of your appointment on 3.06.15.

16. In the case of Child P, you:

a) did not provide Child P with weekly physiotherapy for a period of six weeks following Botox therapy in April 2015;

b) despite noting that the child’s walker was too small, did not order and / or record that you had ordered the patient's walker;

c) identified that the patient required a standing frame on 21.05.15 but did not:

i. speak and / or record a discussion with the child’s mother regarding this issue until 24.02.2016;

ii. actively progress the plan to provide a standing frame;

d) following concerns identified on 16.06.16, regarding Child P not attending school, did not undertake adequate steps to ensure Child P was safe.

17. In the case of Child Q, you:

a) did not see the patient between 30.09.15 and 06.01.16, despite the child requiring a full assessment as soon as possible;

b) did not record a clear analysis of the patient's problems;

c) did not carry out a detailed physical assessment of the patient's condition on 06.01.16;

d) despite noting Child Q needed an alternative walker on 6.01.16, did not take/and or record steps to arrange for a suitable walker to be provided in a timely manner;

e) on 15.09.16 placed an order to trial equipment but did not detail which accessories should accompany the walker.

18. In the case of Child R, you:

a) did not provide adequate safety advice and / or record providing adequate safety advice to the patient's parents;

b) did not provide a treatment block following appointment on 19.03.15;

c) did not carry out and / or document evidence of any home exercise programme or advice on activities for the patient to do at home;

d) despite agreeing on 10.06.15 to make a wheelchair referral, did not do so until 21.01.16;

e) did not record that the patient's walker tipped outside at school on the Trust Datix incident reporting system;

f) did not visit the patient at school between 13.10.15 and 05.05.16;

g) did not record and / or place on file in a timely manner, a contemporaneous record of your conversation with the child’s mother on 16.06.16.

19. In the case of Child S, you:

a) did not consistently record sufficient observations of the patient’s condition;

b) did not provide and / or record an adequate treatment plan;

c) did not provide follow up treatment between 24.06.13 and 07.01.15.

20. The matters set out in paragraphs 1 – 19 constitute misconduct and / or lack of competence.

21. By reason of your misconduct and / or lack of competence your fitness to practice is impaired.

The substantive hearing panel found misconduct by reference to all the particulars proved save for 8(a)(i), 8(a)(ii), 8(a)(iii), 8(a)(iv), 12 and 13(c)(i), and that the Registrant’s fitness to practise was impaired. A Suspension Order for a period of 12 months was imposed. The substantive hearing panel also directed that this Order be reviewed by 4 July 2019.

Finding

Preliminary Matters

Service

1. The Panel was shown a copy of the written Notice of Hearing dated 6 November 2019, addressed to the Registrant at her registered address as on the Certificate of Registration from the HCPC of the same date. The Panel was also shown a signed statement on behalf of the HCPTS that the letter had been posted by first class post to that registered address on 6 November 2019.

2. The Legal Assessor advised that Article 31(9) of the Health Professions Order 2001 as amended (‘the 2001 Order’) required that the Registrant be given the opportunity of appearing before the Panel to present her case. The Notice of Hearing should give notice of the date, time, and location of the hearing and be served on the Registrant at the registered address in advance of the hearing.

3. The Panel was satisfied that good service of the Notice of Hearing had taken place.

Proceeding in the Absence of the Registrant

4. Ms Germishuys made an application that the hearing proceed in the absence of the Registrant. She referred to an email from the HCPTS to the Registrant dated 6 November 2019 that contained the Notice of Hearing, and to the Registrant’s response by email of 19 November 2019. In that response the Registrant stated, “I will not be attending the review hearing.” Ms Germishuys referred to the jurisdiction to proceed in absence (see paragraph 4 below) and the factors set out in the HCPTS Practice Note “Proceeding in the Absence of the Registrant”, including the nature and circumstances of the Registrant’s absence and, in particular, whether the behaviour may have been deliberate and voluntary and thus a waiver of a right to appear.

5. The Legal Assessor advised that the Panel had the power to proceed in the absence of the Registrant if it was satisfied that all reasonable steps had been taken to serve the Notice of Hearing on the Registrant in accordance with Rule 11 of the Health and Care Professions Council (Conduct and Competence Committee)(Procedure) Rules 2003 (“the Rules”), as amended. She referred to the principles in the Practice Note.

6. The Panel was satisfied that the Registrant had waived her right to appear and to be represented at the hearing. Her email of 19 November 2019 stated clearly that she would not be attending the review hearing. She had not requested an adjournment and no purpose would be served by an adjournment.

Background

7. The Registrant had been employed as a Physiotherapist at Milton Keynes University Hospital NHS Foundation Trust (“the Trust”) from 1998 to September 2016. She was the Clinical Team Lead for the Core Over 5s Neurology Service, working with children aged between five and 19 years old with long-term conditions, primarily those arising from neurological disorders.

8. In May 2016, a member of the Trust’s staff accidentally deleted a set of patient records. Discrepancies were then discovered between the electronic appointment records and the paper records written by the Registrant. A wider audit was conducted by the Trust and the Registrant was invited to attend a meeting. However, the Registrant resigned from her post before the meeting took place. The Trust made a fitness to practise referral to the HCPC by a referral form dated 9 September 2016.

9. At a hearing that took place between 3-7 December 2018, the substantive hearing panel found proved most of the particulars of the Allegation (as set out above), which related to shortcomings in the Registrant’s care and record-keeping between 2013 and 2016 with respect to 19 patients.

10. The substantive hearing panel found misconduct and concluded that the Registrant’s fitness to practise was then currently impaired. It concluded that neither a Caution nor a Conditions of Practice Order would be appropriate and that a Suspension Order was necessary. In paragraph 134 of its decision, the substantive hearing panel stated:

“Having determined that a Suspension Order was the appropriate sanction, the Panel considered the period of suspension … In this case, the Panel believed that it was appropriate to suspend the Registrant from practice for a period of 12 months. The Panel considered this to be appropriate and proportionate given the potential for harm to the public and a risk of repetition. The 12 months would also allow the Registrant time to reflect on her practice, develop insight and undergo further training, although the Panel recognised she could not practise as a physiotherapist” (emphasis supplied)

11. The substantive hearing panel also imposed an Interim Suspension Order. In its decision, that panel directed the Registrar to impose a period of suspension for 12 months (“the Suspension Order”) and went on to state:

“The Order imposed today will apply from 4 January 2019. This Order will be reviewed again before 4 July 2019.”

12. There was correspondence between the HCPC and the Registrant in January 2019 as to the possibility of her consensual removal from the Register. However, that did not proceed further because in her email of 28 January 2019, the Registrant stated that she did not wish that her name be removed.

13. A review took place on 4 June 2019 when the HCPC did not invite the review panel to impose a further sanction but to uphold the Suspension Order. The review panel decided not to make a further order as to sanction, with the result that the Suspension Order remains in place until 4 January 2020, to be reviewed before it expires.

14. Ms Germishuys submitted that the Panel today had jurisdiction to review the Suspension Order under Articles 30(1) and 30(2) of the 2001 Order. She submitted that the Registrant’s fitness to practise remained impaired. The Panel were told of the Registrant’s lack of engagement since the sanction was imposed. Ms Germishuys invited the Panel to impose a new sanction and to consider whether, in all the circumstances, a Striking Off Order would be appropriate.

15. The Legal Assessor advised that this was a mandatory review of the Suspension Order under Article 30(1).

16. The Legal Assessor advised the Panel that its task is to comprehensively review the Suspension Order in the light of the current circumstances. This would enable the Panel to use its professional judgment to decide whether the Registrant’s fitness to practice remains impaired to the extent that the Panel should impose a further sanction to take effect from the expiry of the current sanction and, if so, what the appropriate sanction should be.

Decision

Impairment

17. The Panel was invited to apply the considerations set out in the HCPTS Practice Note entitled “Finding that Fitness to Practice is ‘Impaired’”. It must take into account two components. The first is the personal component, i.e. the current competence and behaviour of the registrant. The second is the public component, i.e. the need to protect service users, to declare and uphold proper standards of behaviour, and to maintain public confidence in the profession.

18. The Panel noted that the previous panel had found that the Registrant had limited insight and had demonstrated a lack of judgment and a disregard for the wellbeing of her patients. There was no explanation as to how the Registrant would behave differently in the future and no assurance that such serious misconduct would not be repeated. The Panel took into account the fact that they had no information or evidence from the Registrant since the substantive hearing in December 2018. Therefore, there was nothing to demonstrate that the Registrant has made any progress towards gaining insight or showing remediation since the substantive hearing panel made its findings of fact.

19. In the absence of any information with regards the Registrant’s current level of insight and any steps she has taken towards remediation, the Panel concluded that there was a real risk of repetition.

20. The Panel concluded that for these reasons the Registrant’s fitness to practice is currently impaired on the basis of the personal component.

21. In considering the public component, the Panel had regard to the need to maintain confidence in the profession and declare and uphold proper standards of conduct and behaviour. Members of the public would be extremely concerned to learn that a physiotherapist had failed to deliver planned treatment or ensure patients were safe. The Registrant’s conduct fell far below the standard expected of a registered practitioner.

22. The Panel found that the Registrant continues to pose a risk to patients, has brought the profession into disrepute, has breached a fundamental tenet of the profession by failing to act in the best interest of patients, and has demonstrated a lack of insight. There was a risk that all of these features were likely to be repeated in the future.

23. In all the circumstances, the Panel determined that public confidence and professional standards would be undermined if a finding of impairment were not made and concluded that the Registrant’s current fitness to practise is impaired on the basis of both the personal component and the wider public interest.

Sanction

24. The Legal Assessor referred the Panel to the HCPC Sanctions Policy. The purpose of imposing a sanction is not to punish the Registrant but to ensure that the public is protected, to promote public confidence in the profession, and to provide a deterrent to other registrants.

25. When considering what, if any, sanction was appropriate in this case, the Panel was mindful that each case must be determined on its own merits. The HCPC has adopted a policy in respect of indicative sanctions to aid panels to make fair, consistent, and transparent decisions. It was also aware of the need to give clear and cogent reasons for its decision, particularly if departing from the policy. The Panel received and applied advice from the Legal Assessor in relation to the imposition of a sanction.

26. The Panel agreed with the following aggravating features identified at the substantive hearing:

• the failings in the Registrant’s practise were fundamental, particularly in relation to recordkeeping;

• the children in her care had been exposed to a risk of harm by her failings;

• the failings occurred over a sustained period of time;

• there was a lack of insight by the Registrant as to the potential consequences of her failures of practice;

• there was no evidence over a sustained period that the Registrant had remediated her practise;

• there was a risk of repetition;

• there were multiple highly vulnerable patients;

• there were multiple failings over an extended period of time.

27. The Panel also accepted that there were mitigating factors, in that the Registrant had an unblemished regulatory record prior to this allegation and there had been no complaints recorded. The two witnesses had not identified any issues with the actual treatment of patients.

28. The Panel determined that the Registrant had not demonstrated remorse or sufficient insight and there was a high risk of repetition. As a result, it was not appropriate for the Panel to take no action. Mediation was also not an appropriate sanction in this matter as mediation would provide no public protection.

29. The Panel did not consider that a Caution Order would be appropriate in this matter given the seriousness of the misconduct, the risk of future harm, and the lack of any insight or remediation shown by the Registrant.

30. The Panel therefore moved on to consider whether a Conditions of Practice Order would be appropriate. The Panel found that a Conditions of Practice Order would not be an appropriate sanction in this case because the Registrant lacks insight and has not engaged meaningfully with the regulatory process, with the consequence that the Panel is not confident that the Registrant would comply with conditions or that any workable conditions could be formulated.

31. At this stage the Panel considered a Suspension Order would protect the public, act as a deterrent to others, maintain confidence in the profession and the regulatory process, and uphold the standards of the profession.

32. The Panel considered that the Registrant’s misconduct was remediable and that she should be given a further opportunity to demonstrate that she could engage and remediate her practice. Accordingly, the Panel concluded suspension to be the appropriate and proportionate sanction.

33. Having determined that a Suspension Order was the appropriate sanction, the Panel considered the period of suspension. In this case, the Panel believed that it was appropriate to suspend the Registrant from practice for a further period of 12 months. The Panel considered this to be appropriate and proportionate given the potential for harm to the public and a risk of repetition, and would provide the Registrant with an opportunity to show willingness to engage with the regulatory process and remediate her practice.

34. The Panel went on to consider a Striking Off Order but considered, at this stage, that a Suspension Order would be sufficient to protect the public and mark the seriousness of the matters found proved.

35. A review hearing will take place before the expiry of this Suspension Order. The Panel considers that it may assist the reviewing panel if the Registrant could present evidence as to how she has developed and reflected on the areas of concern found at the substantive hearing, i.e. record-keeping, safeguarding issues, commissioning equipment, etc. This might be achieved by undertaking training and / or maintaining a reflective portfolio and / or receiving support from a mentor. In addition, although the Panel recognised the Registrant could not practice as a physiotherapist, she might be able to work in another capacity, and show reliability and the understanding of a need to provide good care to service users. Testimonials from any paid or unpaid employment may also assist in this regard. However, the Panel recognised that its recommendations do not bind or fetter the discretion of a reviewing panel considering this matter.

36. In order to assist the Registrant, the Panel notes that, in very broad terms, there may be three ways in which this case may progress.

• First, the Registrant has the opportunity to show willingness to engage and remediate her practice and to demonstrate progress to the reviewing panel as outlined above;

• Secondly, the Panel notes that the Registrant has previously sought Voluntary Removal from the Register, albeit she then withdrew that application. It is a matter for the Registrant to reflect on whether she now wishes to renew an application for Voluntary Removal from the Register. Today’s Panel makes no comment one way or the other as to whether such an application would be granted.

• Thirdly, in the event that the Registrant does not demonstrate to the reviewing panel a willingness to engage meaningfully and to remediate her practice, the reviewing panel is likely to give serious consideration to a Striking Off Order.

 

Order

The Registrar is directed to suspend the registration of Miss Zoe L Flello for a further period of 12 months on the expiry of the existing Order.

Notes

The Order imposed today will apply from 4 January 2020.

This Order will be reviewed again before its expiry on 4 January 2021.

Hearing History

History of Hearings for Miss Zoe L Flello

Date Panel Hearing type Outcomes / Status
06/12/2019 Conduct and Competence Committee Review Hearing Suspended
03/12/2018 Conduct and Competence Committee Final Hearing Suspended