Mrs Helen J Stokes

Profession: Physiotherapist

Registration Number: PH26779

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 18/12/2019 End: 17:00 20/12/2019

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

Panel: Conduct and Competence Committee
Outcome: Suspended

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Allegation

While registered as a Physiotherapist with the Health and Care Professions Council, and employed with the North Somerset Community Partnership, you;

1. On dates between 2006 and 2017 did not appropriately store and / or handle service user and staff documentation in that, you:

a. Stored the documentation at your home address.

2. Your actions described at paragraph 1 constitute misconduct.

3. By reason of your misconduct your fitness to practise is impaired.

Finding

Preliminary Matters
Service
1. The Registrant was served with notice of the hearing on 15 October 2019 by first class post.
2. The Panel accepted the advice of the Legal Assessor, and is satisfied that the Notice of Hearing had been served in accordance with Rule 3 of the Health and Care Professions Council (Health Committee)(Procedure) Rules 2003 (the Rules).

Proceeding in absence of the Registrant
3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Conduct and Competence Committee Rules. In doing so, it considered the submissions of Mr Olphert on behalf of the HCPC.
4. Mr Olphert stated that the HCPC had received an email from the Registrant dated 29 November 2019 stating that she was unwell. Mr Olphert also stated that the HCPC had also sent the Registrant a number of letters prior to the final hearing, none of which she had responded to. He argued that the Panel should proceed to hear the case because the Registrant had not applied for an adjournment and had only minimally engaged in the regulatory proceedings. He argued that an adjournment would simply delay the hearing and that there was no indication that the Registrant would attend on a future date.  Mr Olphert reminded the Panel that the Registrant had had notice of the hearing and that witnesses had attended. There was, he submitted a public interest in this matter being dealt with in a timely manner.
5. The Panel accepted the advice of the Legal Assessor.
6. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPC Practice Note entitled ‘Proceeding in the Absence of a Registrant’. In reaching its decision the Panel took into account the following:
•  In her email of 29 November 2019, the Registrant stated that she did not wish to return to practice and that she wanted to be removed from the register.
• There was no application to adjourn the hearing.
• The HCPC witnesses had attended and were ready to give evidence.
• There is a public interest that this matter proceeds.
• Even if the matter were to be adjourned today, the Registrant may still not attend on a future date.
7. Having weighed the public interest in the expeditious disposal of this case and taking into account the Registrant’s stated position, the Panel decided to proceed in the Registrant’s absence.
8. The Panel granted Mr Olphert’s application to amend the Allegation on the basis that they were only minor amendments, the Registrant had been put on notice, and there was no prejudice to the Registrant in doing so.

Private Hearing
9. There was an application for parts of the hearing to be heard in private. The details of that application are contained in the private version of this decision.

Background
10. The Registrant was employed as a specialist Physiotherapist in the Falls Team at the North Somerset Community Partnership (NSCP), formally known as the North Somerset Primary Care Trust. In or around January 2017 the Registrant was involved in a car accident which affected her mobility. Her daughter, Person 1 began clearing out the Registrant’s home following the accident. Person 1, found notes and records relating to service users and colleagues that had been kept by the Registrant in her home. Some of the records dated back to before the NSCP came into existence. Some of the notes were mixed in with the Registrant’s own papers.  
11. In January and February 2017 Person 1 returned the notes to the NSCP. The notes were then cross referenced against patients on the electronic patient record system to ascertain whether there were any notes missing for the patients. At the end of the audit staff found that the notes related to 277 patients, and 418 patient names that appeared across the documentation which also included staff names and information. There was no suggestion that any patient had suffered harm.
12. On 6 October 2017, NSCP referred the Registrant to the HCPC.

The Hearing
13. The Registrant did not attend the hearing and was not legally represented.
14. The Panel found the witnesses called by the HCPC to be credible.  All three of the witnesses called were involved in the investigation of the incident. There was no direct evidence from the Registrant’s line manager.  Witness 3, an Operational Manager from NSCP, who carried out the investigation within the NSCP gave clear and helpful evidence relating to the investigation. His investigation report was detailed and he gave a balanced picture of the Registrant’s insight at the time of the incident.

Particular 1 – Found Proved
15. In reaching its decision on facts, the Panel took account of the audit of the patient records, the disciplinary investigation report and interview notes, the oral testimony of HCPC witnesses, and the Registrant’s own written account that she provided as part of the NSCP’s disciplinary investigation.
16. The Panel found this Particular proved by the oral and documentary evidence. Although there was no formal admission to the HCPC’s investigation, the Registrant had made admissions as part of her employer’s investigation. She co-operated with the investigation carried out by her employer and accepted at the time that she should not have kept documents in her home. The documentation comprised a mixture of service user and staff documentation and records. The documents were not ordered and some were in poor condition. The audit of the documents carried out by Witness 2 showed that the documents spanned a period from 2006- 2017.

Decision on Grounds
17. The Panel heard submissions from Mr Olphert on behalf of the HCPC. He argued that this was a fundamental breach of the Registrant’s duty of confidentiality. It amounted to misconduct because of the quantity of documentation, the period of time that was involved and the fact that the Registrant was a senior practitioner. He argued that even though there was no patient harm the extent of the breach was so significant that this crossed the threshold into misconduct.
18. The Panel accepted the advice of the Legal Assessor. 
19. The Panel exercised its own judgement in determining the issue before it. It was aware that mere negligence does not constitute misconduct. Nevertheless, negligent acts or omissions which are particularly serious may amount to misconduct. The Panel was aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards is sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel had careful regard to the context and circumstances of the matter found proved.
20. The Registrant was an experienced Physiotherapist.  She accepted from the outset that the material was confidential and she knew that she should not be storing it at her home.  She had a supervisory role within the department and was responsible for staff and students. She recognised in earlier supervision meetings that she was experiencing organisational problems and that her own IT skills fell short of what was expected of her. She undertook to remedy this but did not do so.
21.  It was unclear how the department operated when the Registrant began working in the North Somerset team and the Panel accepted that there may have been periods in the early years when the practice and policies relating to storage and governance of patient records were less clear. It was evident that during this period (2006 and 2017) practitioners moved from paper based records to computer records. The Panel also acknowledged that despite a full audit there was no evidence of patient harm and that the Registrant uploaded the results of her visits properly onto the system. 
22. Whilst the Panel accepted that as a member of the Rapid Response team, based in the community she might have had to print off information before visits (especially before there was access to records via mobile telephones), the Registrant should not have been storing the old information in her home. By the time the papers were discovered there were policies for the transfer and disposal of patient records at NSCP which the Registrant did not adhere to. The unchallenged evidence was that the documents were stored in no particular order and that when the documents were audited they were amongst the Registrants own papers and other unrelated documents and that some were in poor condition. 
23. The Panel accepted the evidence of Witness 3 that there were policies in place relating to the governance of information and that the Registrant knew that the documents should not be stored in her home. The documents had been discovered by family members who had regular access to her home.
24. In light of the volume of notes and the extended period of time involved the Panel found that this was a serious falling short of the standards expected of a senior practitioner. The patients were identifiable from the records and there was therefore a significant breach of confidentiality. A fundamental tenet of her role as a physiotherapist is to maintain confidentiality and to keep records safe.
The Panel found breaches of the following Standards of Proficiency for Physiotherapists (2013):
Standard 7 understand the importance of and be able to maintain confidentiality
 7.1 be aware of the limits of the concept of confidentiality
 7.2  understand the principles of information governance and be aware of the safe and effective use of health and social care information
7.3 be able to recognise and respond appropriately to situations where it is necessary to share information to safeguard service users or the wider public
Standard 10 be able to maintain records appropriately
10.2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines

And of the HCPC Standards of conduct, performance and ethics (2016):
Standard 5 Respect confidentiality
Using information
 5.1 You must treat information about service users as confidential.

Standard 10 Keep records of your work
10.2 You must complete all records promptly and as soon as possible after providing care, treatment or other services.
Keep records secure
10.3 You must keep records secure by protecting them from loss, damage or inappropriate access.
25. Accordingly the Panel found that the facts found proved amounted to the statutory ground of misconduct.

Decision on Impairment
26. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct. The Panel heard the submissions of Mr Olphert and accepted the advice of the Legal Assessor. The Legal Assessor drew the Panel’s attention to the approach set out in CHRE v NMC and Grant (2011) EWHC 927 (Admin) and reminded the Panel that there was a personal and public component when considering whether the Registrant’s fitness to practise is currently impaired. The Panel reminded itself of the contents of the HCPTS Practice Note on Finding that Fitness to Practise is Impaired. The Panel also considered Cohen v GMC [2008] EWHC 581 Admin, at paragraph 65 where Silber J provided guidance to Panels on the proper approach to a decision on impairment, stating: “It must be highly relevant in determining if a [doctor’s] fitness to practise is impaired that first his or her conduct which led to the charge is easily remediable, second that it has been remedied and third that it is highly unlikely to be repeated”.
27. The Panel also took into account the  observations  of  Cox J in CHRE v NMC & Grant [2011] EWHC 927 Admin, at paragraph 74, where she held that: “In determining whether a practitioner’s fitness to practise is impaired by reason of misconduct, the relevant panel should generally consider not only whether the practitioner continues to present a risk to members of the public in his or her current role, but also 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 case”.
28.  The evidence from the internal investigation was that the Registrant was an able practitioner. The Registrant had a large and busy case load, and had a relatively senior position with significant experience. The Registrant’s line manager observed that she had poor organisational skills and had experienced significant problems with technology.
29.  The NSCP concluded after the audit that the Registrant‘s behaviour had not actually harmed any patients and the NSCP did not feel the need to notify service users of the breach.
30.  The Panel accepted that the Registrant had experienced stress in her private life in the period leading up to the discovery of the documents and that she is currently unwell. There was however no medical evidence before the Panel.
31. The Panel read with care the Registrant’s reflective piece prepared for the internal investigation and has taken it into account in reaching its decision on impairment.
32.  The Panel found that in regard to the personal component that the Registrant remains impaired. The Registrant engaged in the disciplinary process with her employer and was apologetic and co-operative at the time. She understood that these were serious breaches of confidentiality.  However, the Panel accepted the evidence of Witness 3 that the Registrant has never fully acknowledged or appreciated the gravity of the situation and the serious implications for service users, her employer or for her profession of her failings. The Registrant has not engaged in a meaningful manner in the regulatory proceedings and has not provided a further reflective piece.
33. The Panel noted that whilst she was working that the Registrant failed to keep her governance training up to date despite being reminded to do so.  The Panel determined that her actions were remediable, however there was no evidence of any action taken by the Registrant to remediate her misconduct. Since 2015, there was no evidence to suggest that she had undertaken any courses to update her IT skills. There was also no evidence to show that the Registrant had kept up to date with statutory, mandatory, annual training in relation to information governance since 2015, or to better understand the importance of storing and disposing of records safely. In the circumstances, the Panel found that at best the Registrant’s insight is limited and that she has not remediated her failings. In light of this, the Panel was compelled to find that the risk of repetition remains high.
34.  In respect of the public component, the volume of material recovered and the period of time involved was so significant that the Panel also determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made.
35. Therefore, the Panel determined that the Registrant’s fitness to practise is currently impaired on both personal and public interest considerations.

Sanction
36. The Panel heard submissions from Mr Olphert with regard to sanction.
37. The Panel accepted the advice of the Legal Assessor. The Panel had regard to all the evidence presented, and to the Council’s Sanctions Policy July 2019. The Panel reminded itself that the primary function of a sanction is to protect the public. The Panel have considered:
i.  the  risks the Registrant might pose to service users;
ii.  the deterrent effect of a sanction on other Registrants;
iii.  Public confidence in the profession.
iv.  Public confidence in the regulatory process.
38. It reminded itself that a sanction is not designed to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining the appropriate sanction. In reaching a decision, the Panel had regard to the positive testimonials provided and to the Registrant’s reflective piece prepared for the internal investigation at the time of the incident.
39. The Panel considered the aggravating factors in this case to be:
i.  This was not just an isolated incident. The behaviour went on over a lengthy period, over 10 years, and the Registrant amassed a large volume of patient and staff documentation at her home which was stored in an insecure setting.
ii.  The Registrant accepted that she knew she should not be storing the material in her home. Had she not had a car accident, the Panel felt it was likely that she would have continued to store confidential material in her home.
iii.  Although there was no actual harm to service users there were considerable risks that confidentiality would be breached.
iv.  Whilst the Registrant apologised for her actions at the time, she had not provided the Panel with any evidence that she had undertaken continuing professional development to show that she understood the importance of confidentiality and of following proper governance processes.
v.  The Registrant was a practitioner of many years’ experience. She knew the importance of completing mandatory training. Despite reminders she failed to complete her statutory mandatory governance training.
vi.  The Registrant has not engaged effectively with the HCPC. The Panel had no evidence that she has brought herself up to date and has completed training to avoid a repetition.
vii.  The Registrant has never completely acknowledged the seriousness of her actions and her insight remains limited with a high risk of repetition.   
40. The Panel considered the following to be mitigating factors in this case:
i. The Registrant has no previous regulatory findings.
ii. There was evidence that she was a good physiotherapist, dedicated to meeting the needs of her patients.
iii.  She had a large and busy case load.
iv. She was well liked and respected by colleagues and service users and was generous with her time and was described by her former manager as always willing to help staff and students.
v.  She had identified problems with IT and had not been adequately supported in this regard.
vi. The Registrant admitted her failing at an early opportunity in the employer’s investigation.
41. In considering the matter of sanction, the Panel started with the least restrictive, moving upwards.
42. The Panel first considered taking no action but concluded that, given the volume of material and time span involved that this would be wholly inappropriate.
43. The Panel then considered whether to make a Caution Order. The Panel was mindful of its finding that the Registrant’s behaviour went on over a lengthy period and that she had shown limited insight and that the risk of repetition remained high. The Panel therefore concluded that these matters were too serious for a caution order to be considered appropriate.
44. The Panel next considered the imposition of a Conditions of Practice Order. The Panel found that the Registrant had not demonstrated significant insight into her misconduct and had not begun the process of remediation. This was not a case where the Registrant’s clinical skills were in question.  However, as the Registrant has not begun to remedy her failings and because there was no evidence before the Panel that she is currently working, the Panel could not formulate workable and verifiable conditions.
45. The Panel went on to consider whether a period of suspension would be appropriate in this case. The Panel found that this would be proportionate. It would give the Registrant the opportunity to consider her position carefully, to begin to reflect on the impact of her behaviour and begin to take steps to avoid the risk of repetition.
46. Therefore, the Panel is satisfied that the only appropriate and proportionate response to protect the public and the wider public interest in these circumstances is to make a 12 month suspension order.
47. A future panel reviewing this Order would be assisted by:
i. A reflective piece form the Registrant demonstrating her understanding of the importance of information governance and confidentiality in the health setting.
ii. Evidence/certificates of any relevant continuing professional development relating to confidentiality and information governance.
iii. Evidence of work whether voluntary or paid that the Registrant has undertaken where she has been required to apply information governance or confidentiality processes.

Order

Order: That the Registrar is directed to suspend the registration of Mrs Helen J Stokes for a period of 12 months from the date this Order comes into effect.

Notes

The Order will be reviewed before its expiry.

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 Articles 30(10) and 38 of the Health Professions Order 2001, any appeal must be made to the court not more than 28 days after the date when this notice is served on you.

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 prohibited.
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:
Proceeding in absence
Mr Olphert applied to proceed in the absence of the Registrant. He relied on the fact that the Registrant had been served with notice of the potential for this application with the Notice of Hearing dated 15 October 2019. The Panel accepted the advice of the Legal Assessor. The Panel determined that having made a decision on the substantive issues it was appropriate to consider the application for an interim order in the absence of the Registrant.
Mr Olphert submitted that this was an appropriate case for an interim order in light of the substantive findings. The Panel accepted the advice of the Legal Assessor and have had regard to the HCPC Sanctions Policy (2019).


Decision on Interim Order
The Panel makes an Interim Suspension Order under Article 31(2) of the Health Professions Order 2001. For the same reasons given in its determination on sanction, the Panel concluded that an Interim Conditions of Practice Order would not be appropriate. It concluded that the only proportionate interim order was an Interim Suspension Order for the period of 18 months to cover any appeal period and was necessary for public protection and is otherwise in the public interest. The Panel has made a finding that the Registrant should not practice unrestricted for at least 12 months owing to her conduct. To make no order would be inconsistent with that finding.
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.

Hearing History

History of Hearings for Mrs Helen J Stokes

Date Panel Hearing type Outcomes / Status
18/12/2019 Conduct and Competence Committee Final Hearing Suspended