Mrs Jacqueline Daley

Profession: Occupational therapist

Registration Number: OT52680

Hearing Type: Final Hearing

Date and Time of hearing: 10:00 02/12/2019 End: 17:00 09/12/2019

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

Allegation (As amended):
 
Whilst registered as an Occupational Therapist and employed by County Durham and Darlington NHS Trust:
1) In relation to Service User 1;
a) Following an initial assessment on or around 21 December 2017, you did not complete and/or record a follow up visit;
b) you discharged the service user without completing a full needs assessment.
 
2) In relation to Service User 2;
a) On or around 4 January 2018, you did not adequately assess and or record the assessment of Service User 2 in their home;
b) You did not monitor the patient when the discharge was delayed;
c) You discharged the patient without liaising with the physiotherapist regarding the patient’s mobility.
 
3) In February 2018, in relation to Service User 4, you discharged the service user without undertaking and/or recording a full assessment.
 
4) In relation to Service User 5;
a) after the service user refused to be assessed, you discharged them without a full assessment;
b) you completed a Continuation Sheet with no patient identifiable information and placed it in the patient’s records.
 
5) Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
a) Service User 1;
b) Service User 3;
c) Service User 6;
d) Service User 7;
e) Service User 9;
f) Service User 10;
g) Service User 11;
h) Service User 12.
 
6) On 5 October 2018, during an environmental visit to Service User 8, you;
a) did not demonstrate an awareness of the service user’s functional abilities;
b) did not review the occupational therapy input prior to the visit;
c) required prompting from your supervisor to undertake measurements.
 
7) In October 2018, in relation to Service User 9 you;
a) did not hand over the outcome of the needs assessment in relation to Service User 9 to the ward staff;
b) sent a referral to a handyman for equipment that was not suitable;
c) saved the referral form, containing confidential information, on the shared system.
 
8) On 5 June 2018, you did not identify the equipment required for discharge of Service User 12;
 
9) In relation to Service User 13;
a) On or around 8 March 2018, you did not adequately complete and /or record a transfer assessment;
b) did not adequately undertake an environmental visit.
 
10) The matters described in paragraphs 1 – 9 amount to lack of competence.
 
11) By reason of your lack of competence, your fitness to practice is impaired

Finding

Preliminary Matters:
 
1. Notice
 
i) 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 17 September 2019 in accordance with Rules 3 and 6 of the Conduct and Competence Procedure Rules 2003. ii) The Panel determined that the notice had been served in accordance with the Rules.
 
2. Application to conduct parts of the hearing in private
 
i) Ms Sharpe referred the Panel to the HCPTS Practice Note on Conducting Hearings in Private and to Rule 10 (1) (a) of the Conduct and Competence Procedure Rules 2003.
 
ii) She submitted that those parts of the hearing in which reference would be made to the health of the Registrant should be held in private session. She said this would be appropriate in order to protect the private life of the Registrant.
 
iii) The Panel heard and accepted the advice of the Legal Assessor.
 
iv) The Panel had careful regard to the provisions of the Practice Note on Conducting Hearings in Private and 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.
 
v) The Panel was satisfied that, for the protection of the private life of the Registrant the public should be excluded from those parts of the hearing in which her health is discussed.
 
3. Proceeding in the absence of the Registrant
 
i) Ms Sharpe, on behalf of the HCPC, invited the Panel to proceed in the absence of the Registrant. She drew the Panel’s attention to the Registrant’s email to the HCPC dated 21 October 2019 in which she stated: “…I am taking my former employers, Count [sic] Durham and Darlington NHS Trust to court for unfair dismissal and discrimination…Due to the actions of a colleague prior to me starting my competencies …I really am not well enough to attend the hearing. Therefore I would like to inform you that I cannot attend the hearing in December…I understand that the panel have to make a decision on the evidence that they have however given current circumstances I would like to appeal to the panel to allow me to withdraw my name from the HCPC register.”
 
ii) Ms Sharpe referred the Panel to the guidance contained in the HCPTS Practice Note on Proceeding in the Absence of the Registrant and submitted that 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 the right to appear. She pointed out that the Registrant had provided no evidence in support of her representation that she was not well enough to attend the hearing, and had made no request for an adjournment, but had indicated how she wished the Panel to dispose of the matter. Ms Sharpe submitted that the Panel could infer from this that the Registrant was content for the hearing to proceed in her absence. She submitted that the public interest in expeditious disposal of the allegation outweighed any disadvantage to the Registrant in proceeding in her absence.
 
iii) The Panel heard and accepted the advice of the legal assessor, which included reference to the judicial guidance provided in the cases of R v Jones, GMC v Adeogba and Yusuf v Royal Pharmaceutical Society of Great Britain. The Legal Assessor advised the Panel that it should have careful regard to the Registrant’s email of 21 October 2019, and ask itself three questions: a) Is the Registrant aware of today’s hearing? b) Has the Registrant determined not to attend the hearing? c) Is the Registrant content for the Panel to proceed in her absence?
 
iv) The Panel approached the decision as to whether or not it should proceed in the absence of the Registrant with the utmost care and caution. It took the view that a proper reading of the email from the Registrant left no room for doubt that she was aware of the hearing, had determined not to attend and was content for the Panel to proceed in her absence. The Panel noted a witness was already in attendance and that the Registrant had not requested an adjournment. The Panel had careful regard to the Registrant’s written references to her ill-health, but in the absence of authoritative evidence that she was not fit to attend the hearing, concluded that she had voluntarily absented herself from the proceedings and waived the right to attend. In the Panel’s view the public interest would best be served by proceeding, and it would be fair and proportionate to do so. For all these reasons, the Panel agreed to proceed with the hearing.
 
4. Application to Amend Particular 10
 
i) Ms Sharpe applied to amend Particular 10 by removing the words “misconduct and/or”.
 
ii) She submitted that misconduct in this particular had been included in error as the allegation of impairment set out at Particular 11 was, in accordance with the report of the Investigating Committee, in respect of lack of competence only. She informed the Panel that the proposed amendment had been brought to the attention of the Registrant in an email on 26 November 2019. The Registrant replied by email on 28 November 2019, thanking the HCPTS for the notice and she stated no objection. Ms Sharpe submitted that the proposed amendment would correct an obvious error, would not materially alter the case against the Registrant and would not cause unfairness to any party.
 
iii) The Panel heard and accepted the advice of the Legal Assessor.
 
iv) The Panel was satisfied that the Registrant was aware of the proposed amendment and had made no objection to it. Further, the proposed amendment would correct a clear error, and would not materially change the case against the Registrant; nor would it cause unfairness to any party. The Panel allowed the application.
 
Background
 
5. The Registrant is a registered Occupational Therapist. She was employed by County Durham and Darlington NHS Foundation Trust from January 2009 to December 2018.
 
6. Concerns about the Registrant’s competence initially came to light in early 2017 and an informal capability procedure commenced. In January 2018, a formal capability procedure commenced and the Registrant eventually progressed to a Stage 3 formal capability review. At the conclusion of the capability proceedings, the Registrant referred herself to the HCPC.
 
Decision on Facts
 
7. In considering the Particulars, the Panel applied the principles 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 that it is correct.
 
8. In reaching its decisions, the Panel had careful regard to all the evidence put before it and to the submissions of Ms Sharpe on behalf of the HCPC as well as the written representations of the Registrant. The evidentiary bundle provided by the HCPC include;
• Daily supervision notes
• Capability objectives
• Daily supervision records
• Formal capabilities objectives
• Registrant’s daily capabilities’ logs
• Service users clinical notes
 
9. The Panel heard oral evidence from RC who was the Registrant’s Team Lead from September 2017 until becoming her supervisor in January 2018. The Panel found RC’s written and oral evidence to be consistent and in accord with other evidence put before it. The Panel found RC to be an honest and credible witness who did her best to assist the Panel, while providing fair and measured responses. RC confirmed to the Panel that the evidential records referred to in paragraph 8 were contemporaneous.
 
10. The Panel had careful regard to the Registrant’s self-referral by email on 8 June 2018, together with a second document consisting of a statement by her in which she outlined her claims of bullying and gaslighting which she said culminated in a period of long term sick leave. With regard to the continuing health concerns, the Registrant stated that “I feel that this was an inappropriate time to assess my capabilities. To date the issue of bullying has not been addressed. It is my opinion that my capabilities should have been assessed after the issues of bullying had been resolved. I also feel that the procedure put in place by my managers to assess me worsened my symptoms and affected my ability to show my capabilities fully…I accept that at the time of my assessment that further support needed to be put in place to help my practice however, I feel this means the allegations made regarding my ability to practice as an OT were inappropriately assessed. I feel that the outcomes of the assessments were not a true reflection of my abilities to practice.”
 
11. Further representations of the Registrant were contained in detailed communications from her to the HCPTS dated 21 October 2019 and 28 November 2019. They included the following:
 
a) “I am taking County Durham & Darlington NHS Foundation Trust to court for Unfair dismissal and Discrimination. I have been the victim of bullying in the form of ‘gaslighting’…”
 
b) The Registrant provided detailed descriptions of the alleged bullying, naming AW, who had been her immediate supervisor as “the perpetrator”. She explained that this “knocked my confidence badly”, and gave examples of incidents involving AW which she said “resulted in me taking sick leave for a period of 6 months.”
 
c) The Registrant stated: “I had to complete my competencies due to my standards falling. This was due to a period of bullying from my senior AW. I believe that senior members of staff ignored the bullying which they did know about.”
 
d) The Registrant indicated that when she returned to work in October 2016, after the six month period sickness, she was offered and agreed to mediation with AW. However, she claimed that AW declined mediation. The Registrant was placed on phased return to work over several weeks and began working on a different ward, but with AW remaining as her supervisor.
 
e) The Registrant stated that she worked for a further year before being informed by RC in around October 2017 that she had been reported by AW for not providing equipment to a patient, who the Registrant claimed had declined any equipment. She said that, she was informed by DSC (OT Band 7 UHND) that her clinical documentation would be monitored for a number of weeks but “during that time, I received no feedback from DSC regarding my documentation….”. She stated that after several weeks she was informed by RC that her documentation was still under review and that she was now undergoing formal capabilities. She said it was explained that her documentation “remained incorrect and that they felt I had made mistakes in my work”. The Registrant said she was not given sufficient feedback and support in the initial informal stages of the review and the escalation to formal review came as a shock. She stated that, prior to this, she had an “unblemished record and worked as a qualified OT for over 8 years and had no sickness to speak of prior to all of this”.
 
f) The Registrant stated: “During the time I was completing my formal capabilities I complied with everything the trust had asked of me.” She stated that this included working at four different sites with 5 band 7 OTs at different times, during which she was asked to wear an assistant’s uniform and was not allowed to complete assessments on her own. It was her view that these matters added further stress to an already stressful situation. She stated that “due to the increased stress and anxiety I suffered while undergoing formal capabilities I unfortunately had another episode of sickness. During this time I was called to a meeting…I was informed that I hadn’t met my capabilities and would need to attend another meeting to decide the outcome. I feel my opportunity to prove my capabilities, was cut short by the Trust due to my ill health and sickness leave.”
 
g) The Registrant set out a range of issues concerning the way she was treated during the formal capabilities process. These included that she had reported being bullied to management but that this was never addressed, that correct processes had not been adhered to and that “the competencies procedures were erratic, disorganised…the capabilities and dismissal procedure was also very unorganised and was made difficult for me to participate in and lots of things that were said to me were subjective and not constructive…”
 
h) The Registrant stated: “The initial complaint against me was a documentation issue only and escalated quickly to informal and formal capabilities. My failings in these competencies were brought about following the bullying. The bullying was never addressed despite HR and management being aware through all of this. It has been a very traumatic and stressful time for me. Instead of me being treated as a victim of bullying I feel it was easier for management and HR to build a case for constructive dismissal .. rather than admit that I was being bullied.
 
i) The Registrant said: “I take responsibility for my mistakes, however as a result of the bullying my…health suffered and the trust did not take this into consideration…I was dismissed by the Trust, on 13/12/18 and have not worked as an occupational therapist since.”
 
12. In the absence of the Registrant, Ms Sharpe and the Panel put extensive questions to RC about the Registrant’s description of the capabilities processes and the circumstances in which she had been required to work. RC said that, prior to the matters in issue, concerns about the Registrant’s practice had been raised in the past. She refuted the allegations that the Registrant had been bullied and told the Panel that she had seen no evidence of this. She expressed the view that the Registrant lacked insight into what the main issues are. She said the Registrant had been struggling to provide patients with the input they required and it would have been neglectful of the Trust to ignore this. RC did not accept that the capability proceedings were erratic, disorganised, subjective and not constructive. She disputed much of the detail of the individual issues raised by the Registrant and said the procedures put in place by the Trust were all “to help not hinder” the Registrant. She pointed out that it was always open to a supervisee to request a different supervisor and the Registrant had never done so. She rejected the Registrant’s assertion that HR and management had built a case for constructive dismissal rather than admit that the Registrant had been the victim of bullying.
 
13. The Panel accepted the advice of the Legal Assessor.
 
Particulars 1 a) and b) – found proved
 
In relation to Service User 1:
a) Following an initial assessment on or around 21 December 2017, you did not complete and/or record a follow up visit;
b) You discharged the service user without completing a full needs assessment.
 
14. RC told the Panel that Service User 1 was admitted to hospital on 17 December 2017 with a fever and was treated for urosepsis. He was assessed by the Registrant on 21 December 2017 and discharged from hospital on the same day. However, he was readmitted on 25 December 2017 due to suspected sepsis.
 
15. RC informed the Panel that she had been alerted to concerns that Service User 1 had not been provided with the appropriate equipment and that a follow up visit had not been completed to assess for the appropriate equipment required.
 
16. RC referred the Panel to Service User 1’s Clinical Notes. She indicated that she had reviewed the documentation completed by the Registrant and it contained no record of the Registrant having completed and or recorded a follow up visit. RC stated that in supervision with the Registrant she had asked why the Registrant did not follow up with the visit. She said the Registrant told her that she had forgotten to do the follow up visit as she was under pressure with referrals.
 
17. RC referred the Panel to the following concerns highlighted by the RAIT Assessment document signed by the Registrant and dated the day of Service User 1’s discharge on 21 December 2017:
 
• Under the heading ‘Patient and therapist agreed objectives’, the Assessment contained the words: “Follow up visit post discharge for banister rail and chair assessment”, but the records contain no indication that such a visit took place;
• Under the heading ‘Current ability on stairs’, the assessment contained the words: “Physio Assessment required”, yet in the same form the Registrant had indicated that the Service User’s daughter was to collect a toilet frame, when the toilet was on the top floor;
 
18. In addition, RC told the Panel that after Service User 1 had been re-admitted to hospital, a visit to his property was required to ensure that he would be able to return home safely. During the environmental assessment it was identified that Service User 1’s chair was too low and could not be raised, therefore a new chair was required to enable him to be independent. In addition, he required equipment to enable independent use of the toilet and for bathing. RC stated that this should have been picked up by the Registrant in her first assessment of Service User 1, and at the very least in the follow up visit.
 
19. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. It had careful regard to Service User 1’s Clinical Notes, and in particular to the documentation completed by the Registrant. It was satisfied from this that the Registrant had discharged Service User 1 on 21 December 2017. Based on the evidence it concluded that the Registrant had not completed a full needs assessment. It was unable to find any documentary evidence that the Registrant had completed and/or recorded a follow up visit.
 
Particular 2 a) – found proved
 
In relation to Service User 2;
On or around 4 January 2018, you did not adequately assess and or record the assessment of Service User 2 in their home;
 
20. RC told the Panel that Service User 2 had been referred for an occupational therapy assessment to determine if he was safe to return home. She said the Registrant assessed him on 4 January 2018. RC said that Service User 2’s social worker told her that she had identified, through advice from Service User 2’s physiotherapist, that he would require downstairs living due to severe shortness of breath. The social worker was concerned that the Registrant had not identified this issue during the course of her assessment on 4 January 2018. As a consequence of her failure to do so, RC said it was only when the social worker discussed downstairs living with Service User 2 and his wife that the social worker had become aware that he would require a bed to be moved downstairs and would also require a commode as there was no downstairs toilet. Because Service User 2 was ready for discharge at that time it was necessary for him to be transferred to a ‘time to think bed’ to allow the family time to arrange appropriate changes to his home environment.
 
21. RC told the Panel that when she examined the assessment form she found further deficiencies:
 
• In the comments section of the form, the Registrant had written ‘provide perch stool and discharge service user’. RC said this entry did not provide sufficient information. The Registrant had not fully completed the assessment or identified Service User 2’s immediate needs and requirements. She said there was no documentation of clinical reasoning to demonstrate why the Registrant had made the decision to provide a perching stool and then discharge the service user. There was no documentation that showed the Registrant had taken into account how the service user’s breathlessness may impact on his function.
 
• The date was not written in the format required in documentation policy;
 
• The assessment documentation did not make clear if the Registrant had completed the functional assessment herself. RC stated: “In most circumstances I would expect that an Occupational Therapist would complete their own assessment of function…It is required to make clear if you have completed the assessment yourself…”
 
22. The Panel had careful regard to the assessment form and accepted the evidence of RC. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, the Panel was satisfied that on or around 4 January 2018 the Registrant did not adequately assess and or record the assessment of Service User 2 in their home.
 
Particular 2 b) – found proved
 
In relation to Service User 2;
You did not monitor the patient when the discharge was delayed;
 
23. RC informed the Panel that although the Registrant discharged Service User 2 from the Occupational Therapy Service on 4 January 2018, it was not until nearly two weeks later that the Service User was discharged from the ward. In her oral evidence, RC told the Panel that the Occupational Therapist’s Duty of Care begins at referral, and does not necessarily end at point of discharge from the service. She said: “For me, I will monitor a patient when they have been discharged from the service if they are still on the ward, and I won’t stop until they have gone. Different therapists may do it differently.”
 
24. RC told the Panel, that in this case the Registrant should have continued to monitor the service user while he was on the ward because the conditions of service users and their circumstances may change. A patient might not be re-referred by ward staff immediately before discharge. RC pointed out that the Registrant would have been regularly in attendance on the ward anyway and said it would have been appropriate for her to keep an eye on Service User 2.
 
25. The Panel had careful regard to Service User 2’s Clinical Notes and accepted the evidence of RC. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. It noted that there had been an 11 day gap between the Registrant discharging Service User 2 from the OT Service and her next recorded contact. The Panel was satisfied that the Registrant did not monitor Service User 2 during the period when his hospital discharge was delayed, and it was satisfied on the balance of probabilities that, in all the circumstances of this case, she should have done so.
 
Particular 2 c) – found proved
 
In relation to Service User 2;
You discharged the patient without liaising with the physiotherapist regarding the patient’s mobility.
 
26. RC told the Panel that the Registrant discharged Service User 2 from Occupational Therapy Services on 4 January 2018. RC said that in her assessment the Registrant recorded that the service user had “not [been] seen by physio on stairs?” In her letter to the Registrant dated 22 February 2018 detailing the outcome of the Registrant’s Informal Capability Meeting on 8 February, RC stated: “You reflected on this case in supervision and agreed you could have kept the case open until the Patient was discharged and that you should have liaised with physiotherapist to gain more information, it was discussed that the Patient may have deteriorated since you assessment which you could not have predicted, however if you had kept the case open you could have reviewed the Patient’s needs and changed you plan accordingly.”
 
27. The Panel had careful regard to the assessment form and to the Informal Capability Meeting letter. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied that the Registrant discharged the patient without liaising with the physiotherapist regarding the patient’s mobility.
 
Particular 3) – found proved
 
In February 2018, in relation to Service User 4, you discharged the service user without undertaking and/or recording a full assessment. 
 
28. RC referred the Panel to an entry in Service User 4’s clinical notes under the date 19 February 2018. The entry, signed by the Registrant and timed 10.10, states “Spoke with ward staff. Service User 4 is medically fit however he feels he can’t go home yet. Ward staff to arrange a placement for him. Discharged from OT Please re refer if necessary.”
 
29. RC told the Panel: “There is nothing recorded in the notes to confirm whether the Registrant had spoken with the Service User directly. When I asked the Registrant if she had done this, she confirmed she had spoken to the Service User. My concern was that she did not document this and I had a further concern as to whether she had done a full assessment of the Service User before making the decision to discharge him…”
 
30. RC referred the Panel to two entries in Service User 4’s clinical notes made by herself at 12.45 and 13.00 the following day on 20 February 2018. The first stated: “Advised in DMT meeting patient is for discharge home not to a placement. Social Worker requested OT review of transfers as ward have reported patient has difficulty with bed transfers.” The second stated: “Patient is keen to return home now but feels he will require support.” The entry documents some assessment by RC and a plan to assess further for care support.
 
31. RC also referred the Panel to summary notes of a supervision meeting she had conducted with the Registrant on 26 February 2018. These state: “Discussed case SU4; Registrant had discharged Patient as not requiring OT, however, the following day a social worker advised that they felt OT input was required. Notes had indicated that JD had spoken with the ward staff and they had advised that the patient was not ready for home and was to go into 24 hour care – no indication that the Registrant had spoken with the patient himself. Registrant stated she had spoken with the patient directly – notes did not reflect this. Social Worker had assessed the patient the following day and patient had confirmed they did wish to return home.”
 
32. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, the Panel was satisfied on the balance of probabilities that the Registrant discharged Service User 4 without undertaking and/or recording a full assessment.
 
Particular 4) a) and b) – found proved
 
In relation to Service User 5;
a) after the service user refused to be assessed, you discharged them without a full assessment;
b) you completed a Continuation Sheet with no patient identifiable information and placed it in the patient’s records.
 
33. RC told the Panel: “On 12 February 2018, the Registrant attempted to complete a functional assessment with Service User 5 but the Service User declined functional transfer assessment, meaning the assessment could not be completed. She then discharged the service user as a result of not being able to perform the assessment. The concern was that the Registrant should not have discharged the service user after one refusal. She should have kept the case open for longer in order to complete the assessment.”
 
34. RC also told the Panel that she had been concerned about the quality of the Service User records and that when she checked these she found “there was no service user identifiable information on a continuation sheet written by the Registrant placed in the service user notes, so it was not immediately clear who the notes were about. When I discussed this with her during supervision on 26 February 2018, she said that she forgot to go back and add this information.”
 
35. RC referred the Panel to the summary notes of her supervision with the Registrant on 26 February 2018. In these she recorded: “Discussed case of Service User 5. Registrant had attempted to assess Patient on one occasion, Patient had declined functional/transfer assessment as feeling tired and unwell – as nursing staff had advised Patient was often noncompliant the Registrant had discharged Patient. The following day the Patient had agreed to get up with physio and was engaging with therapy. RC discussed that the Registrant should have kept the case open longer and returned at a different time or later date to attempt to complete assessment. In relation to this case the Registrant had also placed a continuation sheet in the Patient records which had no Patient identifiable information on it – the Registrant advised she had looked for a [OT] sticker but couldn’t find one and then forgot to go back to add details to the continuation sheet.”
 
36. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. It noted that it had been provided with no patient records, but accepted the evidence of RC that the summary notes of her supervision with the Registrant had been recorded contemporaneously. In all the circumstances, the Panel was satisfied on the balance of probabilities that after Service User 5 refused to be assessed, the Registrant discharged her without a full assessment, and that the Registrant completed a Continuation Sheet with no patient identifiable information and placed it in the Service User’s patient records.
 
Particular 5) a), b), c), d), e), f), g), h) – found proved
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
a) Service User 1;

37. The Panel reminded itself of its findings in respect of Particular 1 that, having had careful regard to Service User 1’s Clinical Notes and in particular to the documentation completed by the Registrant, it was:

• Satisfied that the Registrant had discharged Service User 1 on 21 December 2017;
• The Registrant had not completed a full needs assessment prior to discharging Service User 1;
• Unable to find any documentary evidence that the Registrant had completed and/or recorded a follow up visit.
 
38. The Panel had careful regard to the service user’s clinical notes. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In these circumstances, the Panel was satisfied on the balance of probabilities that Particular 5 a) had been made out.
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
b) Service User 3;
 
39. RC referred the Panel to Service User 3’s Clinical Notes and in particular to the 19 January 2018 assessment which the Registrant had signed. RC told the Panel: “I attended the ward to check the file and noted that documentation was not of a good quality. Some of the writing was illegible and the information was brief. Some of the form had been completed by the Registrant’s student. The assessment form stated that the information regarding service user’s function had been reported / recorded and had not been assessed by the Registrant and her student, however they had identified that the service user’s sofa needed raising and that a high backed chair was recommended. The assessment also stated in comments section ‘raise chair wheelchair assessment’. The plan here was very unclear and there was no real documentation of clinical reasoning to help justify any plan, for example, no comments on the height of the service user or of their popliteal measurement in relation to the height of their chair or sofa at home. In addition, RC noted that no entry had been made under the heading ‘Identified risk reduction strategies:’
 
40. RC also referred the Panel to the assessment form completed by herself in respect of Service User 3 just four days later. She drew the Panel’s attention to significant differences between the two records of assessment. She had determined that the service user was able to manage chair transfers independently and told the Panel that this indicated that the Registrant’s plan to raise the service user’s chair would not have been appropriate. Further, she had determined that the service user was unable to sit from lying down, and for this reason should be provided with a bed lever. This had not been noted by the Registrant. In addition, RC had recorded that the service user was concerned about urgency when passing urine and so would benefit from the provision of a commode. However, this had not been noted by the Registrant. 41. RC referred the Panel to her summary notes of her 23 January 2018 supervision with the Registrant which recorded: “…discussed Service User 3…Registrant explained documentation completed mostly by student, RC advised Registrant had overall responsibility. On reflection Registrant agreed documentation was not adequate.”
 
42. The Panel had careful regard to the service user’s clinical notes and to RC’s summary notes. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. For all the reasons set out above, the Panel was satisfied on the balance of probabilities that between the dates alleged the Registrant did not undertake and/or record an adequate assessment and/or plan for Service User 3.
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
c) Service User 6;
 
43. RC referred the Panel to the Stage 1 Capabilities Log she had compiled in respect of the Registrant’s assessment of Service User 6 on 29 May 2018. She told the Panel that the Registrant’s clinical reasoning had been an issue. She said Service User 6 was planned for discharge the following day. RC recorded a detailed description of the assessment in the log, indicating multiple occasions in which she had prompted the Registrant. For example:
 
“The Registrant’s documentation of functional assessment was not as detailed as RC would like it to be, it didn’t include concerns about unsteadiness when turning, the shortness of breath on exertion of the use of rails when transferring from toilet. The Registrant documented a plan in the medical notes which stated equipment to be provided and home visit to be carried out, however the plan was not clear. RC prompted the Registrant to identify what would be considered essential for discharge for the Patient. Did the Patient require a home assessment prior to discharge, an environmental visit of a follow up visit? Was there any equipment that was essential for discharge? RC questioned if it would be safe for the Patient to return home before equipment was in place?”
 
44. The Panel had careful regard to the Daily Capabilities Log and noted that it had been signed by the Registrant and that no comments had been added by the Registrant in the designated section of the form. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that Particular 5 c) had been made out.
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
d) Service User 7;
 
45. RC referred the Panel to the Stage 1 Capabilities Log she had compiled in respect of the Registrant’s assessment of Service User 7 on 31 May 2018. She also referred the Panel to the Registrant’s June 2018 Formal Capabilities Objectives document.
 
46. RC told the Panel: “I had to prompt the Registrant on several occasions to review and write up the assessment of Service User 7. She had not contacted Service User 7’s family to assist with the completion of the documentation. I shadowed the registrant during the assessment…and noted it was very awkward and she kept repeating herself and also referred to meal preparation and the type of food service user preferred although service user was PEG fed…Her plans and write up were unclear.”
 
47. RC drew the Panel’s attention to that part of the Formal Capabilities Objectives document in which she had recorded: “Assessments have not always been sensitive for example assessment carried out on 31/06/18 with Patient Service User 7 – The Registrant struggling to communicate with Patient due to Patient’s poor hearing, the Registrant used some clinical language that Patient struggled to understand and the Registrant questioned Patient on more than one occasion how he manage his meals/ did carers make his meals, even though Patient was PEG fed. The Registrant ended an assessment and decided no OT input was required before completing observational assessment of Patient’s functional abilities. The Registrant struggling to plan and problem solve even with regards to planning how and when identified equipment will be delivered and fitted.”
 
48. The Panel had careful regard to the Daily Capabilities Log and the Formal Capability Objectives document. It noted that the Daily Capabilities log had been signed by the Registrant and that she had not added any comments in the designated section. The Panel also noted that the Formal Capability Objectives Document had not been signed by anyone. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that Particular 5 d) had been made out.
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
e) Service User 9;
 
49. RC told the Panel that the Registrant had completed the assessment but with supervision from herself. She said: “The Registrant did not gather all of the information initially and had to return to the Service User to gather information required to complete the assessment. The assessment of the Service User’s function was incomplete although the Registrant had mobilised with service user to the end of the bay level with the toilet she had not requested to assess toilet transfers. When assessing bed transfers the back rest on the hospital bed was elevated, the registrant did not lower the back rest. The service user did not have a profiling bed at home therefore to ensure service user could manage from a standards bed the back rest should be lowered and transfer assessed when the back rest is lowered.”
 
50. RC referred the Panel to the Stage 1 Daily Capabilities Log she had compiled in respect of the Registrant’s assessment of Service User 9 on 9 October 2018. In this, RC had noted: “The Registrant mobilised the length of the bay with the patient level with the toilet but did not request to assess the Patient’s toilet transfers. The Registrant mobilised back to the bed space with Patient assessed chair transfer which Patient managed independently but did use chair arms to lower herself, the Registrant then assessed transfer back on to the bed. For bed transfers the back rest on the bed was up, the Registrant did not assess transfers with back rest down flat – the Registrant did not discuss if Patient had a backrest at home or if she was able to lay flat. The Registrant ended the assessment…The Registrant did not hand over to the ward the outcome of her assessment prior to leaving the ward…RC advised that this was important as the ward may not prioritise patient’s discharge letter of medications for home until they knew the outcome of OT assessment…RC discussed with the Registrant that she would have done things differently…and provided a free standing toilet frame for discharge but…would have referred onto community services for bathing assessment.”
 
51. The Panel had careful regard to the Capabilities Log. It noted that this had not been signed by anyone. It further noted that the inadequacies in the assessment described by RC would have been remedied as a result of the supervision provided by RC. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that Particular 5 e) had been made out.
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
f) Service User 10;
 
52. RC told the Panel: “On 11 October 2018, the Registrant commenced assessment with this service user. It had been agreed that the Registrant would complete assessments independently and then feedback to myself following the assessment (this had been agreed as the Registrant stated she felt more anxious when she was being observed by team lead). The Registrant demonstrated poor time management, she spent a long time chatting with the service user without commencing an assessment. I intervened…The Registrant spent a further hour and fifteen minutes with the service user completing the assessment…she had completed the sections on the assessment to gather collateral history and details of previous function. The Registrant had also made a plan to provide a raised toilet seat, commode, shower board, to assess access and provide activity leaflets, however, she had left the section about current function blank. I questioned the Registrant if she had completed any physical assessment of the service user, she confirmed she had not. I then questioned how she knew what equipment the service user required if she had not physically assessed the service user – she was unable to answer. This is a concern as equipment should only be provided following a full functional assessment.”
 
53. RC referred the Panel to the Stage 1 Capabilities Log she had compiled in respect of the Registrant’s assessment of Service User 10 on 11 October 2018. In this, RC had noted: “RC questioned the Registrant if she had completed any functional assessment, the Registrant stated she had not as patient had not yet been seen by physio…RC advised the Registrant that she would never complete a plan to provide equipment without first assessing the Patient’s current function, this was a fundamental part of assessment.”
 
54. The Panel had careful regard to the Daily Capabilities Log, which it noted had not been signed by anyone. It had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that Particular 5 f) had been made out.
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
g) Service User 11;
 
55. RC told the Panel that the Registrant had completed Service User 11’s assessment independently and had then reported back to her. RC said: “She informed me that Service user 11 required two toilet frames. The Registrant offered the frames to the Service user who then declined them. I asked the Registrant if she had observed the Service User without the toilet frames, she confirmed she had not. I informed the Registrant that she would need to request a review transfer to see if the Service user would struggle without them. The Registrant said she thought the Service user would be fine and did not complete and [sic] additional assessment as requested.”
 
56. RC referred the Panel to the Stage 2 Capabilities Log she had compiled in respect of the Registrant’s assessment of Service User 11 on 15 October 2018. The Panel noted that the log was not signed by anyone but accepted it as corroboration of the account provided by RC in her written statement and oral evidence. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, the Panel was satisfied on the balance of probabilities that Particular 5 g) had been made out.
 
Between December 2017 and October 2018, you did not undertake and/or record an adequate assessment and/or plan for;
h) Service User 12;
 
57. RC told the Panel: “The Registrant completed an assessment with Service User 12 on 5 June 2018 with supervision from me…The Registrant completed an initial assessment with the service user, gathering information about the service user’s usual level of function. The Registrant asked how the service user was managing now and if the service user had any concerns, the service user stated she had no concerns therefore the Registrant ended the assessment. I then intervened to ask the service user how they were managing toilet transfers on the ward; the service user agreed to demonstrate how she was managing. On assessment of toilet transfer the service user was reliant on the use of a grab rail on the wall to transfer independently from a standards height toilet. It was identified that the service user would require provision of equipment for discharge. Without my intervention on this occasion the Registrant would not have completed a functional assessment and the service user was at risk of being discharged home unsafely…the Registrant did not update the caseload management spread sheet with this Service user’s notes. I had to prompt her on several times to update the documentation. Upon review of this, it lacked clinical reasoning and did not detail the equipment required for discharge.”
 
58. RC referred the Panel to the Stage 1 Capabilities Log she had compiled in respect of the Registrant’s assessment of Service User 12 on 5 June 2018. This log also concerned the Registrant’s assessment of Service user 7. The account of the assessment recorded in the log was consistent with the account given to the Panel by RC. In the summary section of the log, RC had noted: “Ongoing concerns around caseload management, not using the tools she had designed to help effectively. Concern assessment was ended prior to any physical assessment/observation of patient’s transfers, when prompted to assess it was found that there were equipment needs that were essential for discharge. Little evidence of any clinical reasoning, not being reflected in documentation.”
 
59. The Panel had careful regard to the Daily Capabilities Log, which had been signed by both the supervisor and the Registrant. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that Particular 5 h) had been made out.
 
Particular 6 a) – found proved
On 5 October 2018, during an environmental visit to Service User 8, you;
a) did not demonstrate an awareness of the service user’s functional abilities;
 
60. RC told the Panel: “Service user 8 required an environmental visit to assess the home environment and recommend the appropriate support for the transition home. I shadowed the registrant for this visit and noted that she was not fully aware of Service User 8’s needs…When questioned the Registrant was not aware how the service user usually managed his own personal care, she did not know if the service user would usually access the shower or if he would have standing tolerance to stand to shower. The Registrant advised the social worker had requested the service user be provided with a perching stool, however when I questioned the Registrant if this was for use in the bathroom for strip washing or for in the kitchen the Registrant did not know.
 
61. RC referred the Panel to the Daily Capabilities Log she had compiled in respect of the Registrant’s performance on 5 June 2018. In the summary section of the log, RC had noted: “The Registrant completed an environmental visit, some concerns the Registrant was not fully aware of Patient’s functional abilities…”
 
62. The Panel had careful regard to the Daily Capabilities Log, which had not been signed by anyone. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that, during the environmental visit to Service User 8, the Registrant did not demonstrate an awareness of the service user’s functional abilities.
 
Particular 6 b) – found proved
On 5 October 2018, during an environmental visit to Service User 8, you;
b) did not review the occupational therapy input prior to the visit;
 
63. RC told the Panel: “The Registrant believed that another team member had completed and [sic] initial assessment (RAIT) with the service user…The Registrant had not completed any assessment herself and had not viewed the documentation completed by the other team member therefore she was not equipped with the information she required to complete an environmental visit properly.”
 
64. RC referred the Panel to the Daily Capabilities Log she had compiled in respect of the Registrant’s performance on 5 June 2018. In the summary section of the log, RC had noted: “The Registrant completed an environmental visit, some concerns the Registrant…had not reviewed OT input prior to this visit.”
 
65. The Panel had careful regard to the Daily Capabilities Log. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that the Registrant did not review the occupational therapy input prior to the environmental visit.
 
Particular 6 c) – found proved
On 5 October 2018, during an environmental visit to Service User 8, you;
c) required prompting from your supervisor to undertake measurements.
 
66. RC told the Panel: “During the visit I prompted her to measure the depressed height of the chair as the Registrant stated one of the concerns was the service user was struggling to get up from the chair, therefore to determine what height the service user was having to transfer from we were required to see how the chair would be if the service user were sat on it; therefore measuring the depressed height is important. It was concerning that the Registrant did not think to do this as this as one of the main reasons for the visit was because the social worker had identified that Service User 8 had difficulty getting up from his chair.”
 
67. RC referred the Panel to the Daily Capabilities Log she had compiled in respect of the Registrant’s performance on 5 October 2018. In the summary section of the log, RC had noted : “The Registrant required some prompts during the visit for example to measure depressed height of chair, this was important as one of the reasons for completing the visit was due to social worker reporting Patient stated he had difficulty getting up from his chair.”
 
68. The Panel had careful regard to the Daily Capabilities Log. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, it was satisfied on the balance of probabilities that during the environmental visit to Service User 8, the Registrant had required prompting from her supervisor to undertake measurements.
 
Particular 7 a) – found proved
In October 2018, in relation to Service User 9 you;
a) did not hand over the outcome of the needs assessment in relation to Service User 9 to the ward staff;
b) sent a referral to a handyman for equipment that was not suitable;
c) saved the referral form, containing confidential information, on the shared system.
 
69. RC told the Panel: “The Registrant completed the assessment for Service User 9 on 09 October 2018 with supervision from me…She did not communicate the outcome of the assessment which risked the Service User’s discharge being delayed. As the service user was only awaiting the OT assessment it was important to communicate the outcome of the assessment with the ward staff responsible for planning the service user’s discharge (discharge coordinator, staff nurse or ward sister) informing the ward as soon as possible that all OT equipment essential for discharge would be in place that day would allow the ward to prioritise completing the service user’s discharge letter and take home medication ensuring there was no unnecessary delay.”
 
70. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. It accepted the evidence of RC, noted the information in the Daily Capabilities Log and was satisfied on the balance of probabilities that the Registrant did not hand over the outcome of the needs assessment in relation to Service User 9 to the ward staff.
 
Particular 7 b) – found proved
In October 2018, in relation to Service User 9 you; b) sent a referral to a handyman for equipment that was not suitable;
 
71. RC told the Panel: “During the follow up visit for this service user…the Registrant was able to identify that the front access was not suitable for grab rails due to UPVC porch. I suggested that a floor to floor handrail could be fitted. The Registrant then completed a request to the handyperson service for a wall to floor handrail which would not be suitable as like a grab rail it could not be fitted to the UPVC.”
 
72. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. It accepted the evidence of RC, noted the information in the Daily Capabilities Log and was satisfied on the balance of probabilities that the Registrant sent a referral to a handyman for equipment that was not suitable.
 
73. RC referred the Panel to the 16 October 2018 Daily Capabilities Log she had compiled in respect of the Registrant’s work with service User 9. In the summary section of the log, RC had noted: “It was also found that the grab rail referral for Service User 9 had been saved by the Registrant to the shared drive, this referral contained confidential Patient information which should not be saved to the shared drive.”
 
74. The Panel noted that the Daily Capabilities Log had not been signed by the supervisor or the Registrant. The Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances it accepted the evidence of RC and was satisfied on the balance of probabilities that the Registrant saved the referral form, containing confidential information, on the shared system.
 
Particular 8 – found proved
On 5 June 2018, you did not identify the equipment required for discharge of Service User 12;
 
75. The Panel reminded itself of its findings at Particular 5 h) in relation to the Registrant not undertaking and/or recording an adequate assessment and/or plan for Service User 12. It noted that it had accepted RC’s account of events as set out both in her evidence to the Panel and in the Daily Capabilities Log in respect of 5 June 2018. These accounts included the observation that the Registrant ended the assessment without action when the Service User indicated that she had no concerns. The subsequent identification of equipment required for the discharge of Service User 12 was achieved only by the direct intervention of RC.
 
76. The Panel noted that the Registrant had signed the Daily Capabilities Log which detailed the account set out above. Further, the Panel had received no response from the Registrant in respect of the facts alleged in this particular. In all the circumstances, the Panel accepted the evidence of RC and was satisfied on the balance of probabilities that the Registrant did not identify the equipment required for discharge of Service User 12.
 
77. RC told the Panel that Service User 13 had been due to be discharged from hospital on 8 March 2018; an environmental visit was completed by the Registrant on 6 March 2018, and on 7 March (the Registrant’s regular day off) a query arose in respect of whether the Registrant had ordered a commode for Service User’s home use. RC said: “The discharge coordinator advised she had reviewed the Registrant’s documentation but it was unclear what the plan was and there was no mention of a commode…On reviewing the service user’s notes the plan was not clear…As the plan for this service user was not clear I reviewed the initial assessment; this was lacking detail and therefore I decided to complete a functional assessment with the service user to help identify what would be required to facilitate a safe discharge…There were areas of concern that the Registrant had not assessed and had the service user been discharge without my intervention the discharge would have been unsafe as the service user would not have been able to access toileting facilities independently, and would not have been able to transfer from his sofa independently.”
 
78. RC drew the Panel’s attention to the RAIT Assessment Form completed by the Registrant on 2 March 2018. Under the heading ‘Current Transfer Function’, the Registrant had entered the words: “Observed Patient in all transfers. Independent in all transfers.” RC told the Panel that this entry was inconsistent with her own findings when she assessed the Service User’s transfer function on 7 March. In addition, she said the entry was insufficiently detailed and she would expect each transfer assessed to be individually identified.
 
79. RC drew the Panel’s attention to her summary notes of the supervision with the Registrant on 8 March 2018 in which she had discussed with the Registrant the inadequacies of her 6 March environmental visit, and the Registrant had “stated she didn’t know what to do, she stated every time she had a day off she was worried about coming back to find she had done something else wrong. JD stated she did not know why she kept making these mistakes…JD stated that ‘perhaps if she had been supported properly from the start it would not have got to this point’.”
 
80. In respect of the transfer assessment, the Panel noted that there had been an assessment carried out on 2 March 2018, together with transfer advice recorded in the environmental visit on 6 March 2018 by the Registrant. However, the Panel found that the transfer assessment was not adequately completed and/or recorded. Registrant had “stated she didn’t know what to do, she stated every time she had a day off she was worried about coming back to find she had done something else wrong. JD stated she did not know why she kept making these mistakes…JD stated that ‘perhaps if she had been supported properly from the start it would not have got to this point’.”
 
81. In respect of the environmental visit, the Panel had received no response from the Registrant to the facts alleged. In all the circumstances, the Panel accepted the evidence of RC and was satisfied on the balance of probabilities that the Registrant did not did not adequately undertake the environmental visit.
 
Decision on Grounds:
 
82. Having made its findings on the facts, the Panel went on to consider whether the matters found proved constituted lack of competence. The Panel had careful regard to the submissions of Ms Sharpe.
 
83. In relation to lack of competence, Ms Sharpe reminded the Panel of the guidance provided in the case of Calhaem v GMC that this statutory ground connotes a standard of professional performance which is unacceptably low and which (save in exceptional circumstances) has been demonstrated by reference to a fair sample of the Registrant’s work. In addition, she reminded the Panel of the guidance provided in the case of Holton v GMC that in assessing lack of competence the standard to be applied is that applicable to the post to which the Registrant had been appointed and the work she was carrying out, and not any higher standard.
 
84. Ms Sharpe reminded the Panel that the allegations in this case took place over a period of several months in relation to a significant number of Service Users. She submitted that it would be difficult, if not impossible, to suggest that there had not been a fair sampling of the Registrant’s work.
 
85. Ms Sharpe submitted that in establishing whether the Registrant’s standard of professional performance had been unacceptably low, the Panel might be assisted by reference to the Rules and Standards required to be followed by the Registrant, as well as to the assessment of her performance by RC and others. Ms Sharpe referred the panel to:
 
a. HCPC Standards of Proficiency for Occupational Therapists 2013;
b. HCPC Standards of Conduct, Performance and Ethics;
c. Royal College of Occupational Therapists – Professional Standards for Occupational Therapy Practice;
d. Royal College of Occupational Therapists – Code of Ethics and Professional Conduct;
e. Royal College of Occupational Therapists – Keeping Records: Guidance for Occupational Therapists.
 
86. In considering the issue of lack of competence, the Panel accepted the advice of the Legal Assessor and had careful regard to all the evidence as well as the written representations of the Registrant and its own findings on facts. It recognised that this was a matter for its own independent judgment and that there was no burden on the HCPC to prove lack of competence, nor on the Registrant to disprove it.
 
87. The Panel had careful regard to the Registrant’s written representations about her health and how she felt this not only impacted on her performance, but was not adequately made allowance for in the course of the capabilities process. The Panel noted the multiple references in the records put before it to the assistance the Trust provided to the Registrant and its efforts to mitigate the impact of her health issues on her work and on the capabilities process. While the Panel accepted that the concerns expressed by the Registrant were genuinely held, it was unable to conclude on the basis of the evidence put before it that the support provided by the Trust had been inadequate, or that inadequate allowance had been made for the Registrant’s health issues during the course of the capabilities process. In the Panel’s view, it is likely that the Registrant’s health issues did have some impact on her clinical performance. However, the evidence before it led the Panel to the conclusion that the deficiencies in the Registrant’s performance as an Occupational Therapist were so wide-ranging and so fundamental to the competencies expected of a registered Occupational Therapist that they could not be attributed to health issues alone.
 
88. The Panel gave careful regard to the guidance provided in the cases of Calhaem v GMC and Holton v GMC, as set out above.
 
89. The Panel found that, by reason of the facts found proved, the Registrant had breached the following standards taken from the HCPC’s Standards of Proficiency for Occupational Therapist 2013:
 
1 be able to practise safely and effectively within their scope of practice
 
2.8 be able to exercise a professional duty of care
 
4 be able to practise as an autonomous professional, exercising their own professional judgement
 
4.1 be able to assess a professional situation, determine the nature and severity of the problem and call upon the required knowledge and experience to deal with the problem
 
4.2 be able to make reasoned decisions to initiate, continue, modify or cease treatment or the use of techniques or procedures, and record the decisions and reasoning appropriately
 
4.4 recognise that they are personally responsible for and must be able to justify their decisions
 
4.5 be able to make and receive appropriate referrals
 
7.2 understand the principles of information governance and be aware of the safe and effective use of health and social care information 
 
8.1 be able to demonstrate effective and appropriate verbal and non-verbal skills in communicating information, advice, instruction and professional opinion to service users, carers, colleagues and others
 
9.4 be able to contribute effectively to work undertaken as part of a multi-disciplinary team
 
10 be able to maintain records appropriately
 
10.1 be able to keep accurate, comprehensive and comprehensible records in accordance with applicable legislation, protocols and guidelines
 
10.2 recognise the need to manage records and all other information in accordance with applicable legislation, protocols and guidelines
 
14 be able to draw on appropriate knowledge and skills to inform practice
 
14.3 be able to undertake and record a thorough, sensitive and detailed assessment, using appropriate techniques and equipment
 
14.4 be able to gather and use appropriate information
 
14.6 be able to select and use appropriate assessment techniques
 
14.10 be able to use observation to gather information about the functional abilities of service users
 
14.11 be able to analyse and critically evaluate the information collected
 
14.12 be able to demonstrate a logical and systematic approach to problem solving
 
14.13 be able to use research, reasoning and problem solving skills to determine appropriate actions
 
14.14 be able to formulate specific and appropriate care or case management plans including the setting of timescales 
 
14.15 understand the need to agree the goals and priorities of intervention in relation to occupational needs in partnership with service users, basing such decisions on assessment results
 
90. The Panel considered that the facts found proved represented a fair sample of the Registrant’s work. They demonstrated that the Registrant fell well below what was expected of her through a lack of knowledge, clinical reasoning and skills, and that these deficiencies put patients at risk of harm. Even when supported and encouraged to develop by her colleagues over a period of months she was unable to improve her performance consistently or in a sustained manner and continued to repeat earlier errors and failings.
 
91. In all the circumstances set out above, the Panel had no doubt that the matters found proved were serious and connoted a standard of professional performance which was unacceptably low and which constituted lack of competence going to the Registrant’s fitness to practise.
 
Decision on Impairment
 
92. The Panel went on to consider whether the Registrant’s fitness to practise is impaired by reason of her lack of competence. It had careful regard to all the evidence before it and to the submissions of Ms Sharpe. It accepted the advice of the Legal Assessor and had particular regard to the HCPC’s Practice Note on Finding that Fitness to Practise is ‘Impaired’. It recognised that the decision on impairment was a matter for its own independent judgment and that there was no burden on the HCPC to prove impairment of fitness to practise, nor on the Registrant to disprove it.
 
93. The Panel concluded that by reason of the matters found proved the Registrant had put service users at unwarranted risk of harm, breached fundamental tenets of the profession and brought the profession into disrepute. In those circumstances the Panel had no doubt that the Registrant’s fitness to practise had been impaired by reason of her lack of competence.
 
94. The Panel then went on to consider whether the Registrant’s fitness to practise is currently impaired by reason of her lack of competence. In addressing the personal component of impairment, the Panel asked itself whether the Registrant is liable, now or in the future, to repeat or persist in this lack of competence. In reaching its decision, the Panel had particular regard to the issues of insight, remediation and the Registrant’s history.
 
95. In considering the extent to which the Registrant had or had not demonstrated insight into her failings, the Panel recognised that she had engaged with the HCPC and through her written representations to the Panel had accepted some failings in her performance, albeit that she did not provide specific responses to individual charges. However, in the Panel’s view the Registrant had demonstrated only limited insight. In particular, she provided the Panel with little or no evidence to indicate that she had reflected on and understood the seriousness and extent of her lack of knowledge, clinical reasoning and skills. The Panel could detect little or no sense of remorse or reflection and understanding of the impact her failings had, or could have had, on Service users, their families, her own colleagues and on public confidence in the profession of Occupational Therapy. Further, she seemed unable to accept that her inability to achieve sustained and sufficient improvement in her performance might be rooted in her own lack of aptitude rather than in other factors such as issues of health and the unfairness of others.
 
96. In considering the extent to which the Registrant had or had not demonstrated remediation of her lack of competence, the Panel recognised that clinical failings are usually easier to remedy than those, for example, which involve entrenched attitudinal problems. However, while it had received substantial evidence of the Registrant’s efforts during the course of the capabilities process, it had received no evidence of any steps which she may have taken since then to remediate her failings.
 
97. In considering the Registrant’s history, the Panel noted that she had practised as a registered Occupational Therapist for eight years prior to the matters in issue and that there had been no previous regulatory history. The Panel understood that the Registrant has not worked as an Occupational Therapist since leaving the Trust.
 
98. Given its findings on insight, remediation and history, the Panel had no choice but to conclude that the Registrant’s lack of competence is highly likely to persist. For this reason, the Panel determined that a finding of personal impairment is required on the ground of public protection.
 
99. The Panel then went on to consider whether a finding of impairment is necessary on public interest grounds. In addressing this component of impairment, the Panel had careful regard to the critically important public issues identified by Silber J in the case of Cohen when he said: “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.”
 
100. The Panel considered that achieving and maintaining competence to undertake safe and effective practice is a fundamental requirement of the profession of Occupational Therapists and that the public would be concerned to learn of the deficiencies in such wide-ranging fundamental and basic skills and competencies demonstrated by the Registrant. The Panel had no doubt that the need to maintain public confidence in the profession, and to declare and uphold proper standards, would be undermined if a finding of impairment of fitness to practise was not made in the circumstances of this case.
 
101. For all the reasons set out above, the Panel determined that the Registrant’s fitness to practise is currently impaired, both on the grounds of public protection and in the public interest.
 
Decision on Sanction
 
102. 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 Ms Sharpe. It accepted the advice of the Legal Assessor.
 
103. Ms Sharpe drew the Panel’s attention to the HCPC’s Sanctions Policy and submitted that the question of sanction is a matter for the Panel’s own independent judgment.
 
104. In reaching its decision, the Panel had at the forefront of its thinking the principle of proportionality and the need to balance the interests of the Registrant with the protection of the public and the wider public interest in maintaining confidence in the profession and the HCPC, and declaring and upholding proper standards of conduct and performance.
 
105. The Panel had careful regard to all the circumstances, including the following mitigating and aggravating features of the case:
 
Mitigating features
• The impact of the Registrant’s health on her performance;
• The Registrant had never previously been brought before her regulator;
• The Registrant had engaged with the HCPC to the extent of self- referring and providing written representations. The latter included acceptance of unspecified deficiencies in her performance.
 
Aggravating features
• The basic and fundamental nature of the deficiencies in respect of a wide range of core competencies;
• The persistence of the failings, even after assistance, training and advice had been provided;
• Service Users were harmed or put at unwarranted risk of harm;
• The Registrant has demonstrated only limited insight into her failings.
 
106. The Panel first considered whether it would be appropriate to impose no sanction in this case. It gave careful consideration to Paragraphs 97-98 of the Sanctions Policy. The Panel determined that in light of its findings that the Registrant has demonstrated little insight or remediation and that there remains a high risk of repetition or persistence of her serious and wide-ranging lack of competence, 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.
 
107. The Panel next considered the imposition of a Caution Order. It gave careful consideration to the factors set out in Paragraphs 99-104 of the Sanctions Policy. In light of its findings that the Registrant has demonstrated little insight or remediation, and that there remains a high risk of repetition or persistence of her serious and wide-ranging lack of competence, the Panel determined that the imposition of a Caution Order would be inappropriate as it would neither protect the public nor be sufficient to mark the wider public interest.
 
108. The Panel then considered the imposition of a Conditions of Practice Order. It gave careful consideration to Paragraphs 105-117 of the Sanctions Policy. In considering the suitability of a Conditions of Practice Order, the Panel noted that, while clinical failings are, in principle, possible to remediate through a Conditions of Practice Order, the Registrant’s lack of competence is wide-ranging and at a fundamental level, and the Panel has received no evidence of remediation or more than limited insight. As a consequence, any conditions would need to be so onerous as to be unworkable and tantamount to suspension. Further, the Panel noted that in her 21 October 2019 communication to the HCPC the Registrant had stated: “I have not worked as an occupational therapist since my dismissal and I no longer think I can work as an occupational therapist following the decrease in my…health I would like to appeal to the panel to allow me to withdraw my name from the HCPC register.”
 
109. In light of that communication, and in the absence of any more current information as to the Registrant’s future intentions with regard to her practice as an Occupational Therapist, the Panel could have no confidence that she would engage with a Conditions of Practice Order. In all the circumstances, the Panel concluded that such an option is neither workable nor appropriate at this time.
 
110. The Panel went on to consider the imposition of a Suspension Order. It gave careful consideration to Paragraphs 118-126 of the Sanctions Policy. Such an order would protect the public and satisfy the wider public interest in declaring and upholding proper standards and in maintaining public confidence in the profession. The Panel recognised that it would also provide the Registrant with an opportunity to reflect on her failings and to develop an appropriate level of insight into those failings. Further, it would provide her with an opportunity to take the first steps towards remedying those failings by undertaking training in order to acquire the core competencies necessary for compliance with the HCPC Standards of Proficiency for Occupational Therapists. The Panel considered that the nature and seriousness of the case was such that a period of 12 months would be both appropriate and proportionate. However, it would be open to the Registrant to seek an early review.
 
111. The Panel recognised that a Striking-off Order is not available to it at this time.
 
112. For all the reasons set out above the Panel decided that a 12 month Suspension Order is the only appropriate and proportionate sanction at this time.
 
113. The Panel considered that a reviewing panel would be likely to be assisted by: • The Registrant’s attendance;
• A reflective piece from the Registrant with regard to the failings identified in this hearing, together with their impact on service users, other professionals and the public;
• Evidence from the Registrant as to any steps she may have taken in order to remediate her failings;
• References and testimonials in respect of any employment or work, either paid or unpaid, which she may have undertaken since the events in question.
 
 
 

Order

Order: That the Registrar is directed to suspend the registration of Mrs Jacqueline Daley for a period of 12 months.

Notes

Right of Appeal:

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

Under Articles 30(10) and 38 of the Health and Social Work 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.

Application for an interim order to cover the appeal period
 
1. The Panel heard an application from Ms Sharpe to cover the appeal period by imposing an 18 month Interim Suspension Order on the Registrant’s registration. She 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 51-54 of the Sanctions Policy.
 
3. The Panel noted that the Registrant had been informed by first class post and email dated 17 September 2019 that if this Panel found proved the allegation against her and imposed a sanction of Conditions of Practice or a more restrictive sanction on her practice, 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 Ms Sharpe’s application.
 
4. The Panel recognised that its power to impose an interim order is discretionary and that the imposition of such an order is not an automatic outcome of fitness to practise proceedings in which a suspension order has been imposed and that the Panel must take into consideration the impact of such an order on the Registrant. The Panel noted that the Registrant had indicated that she is no longer working as an Occupational Therapist and that she wishes for her name to be removed from the Register. The Panel was mindful of its findings in relation to the Registrant’s limited insight and lack of remediation and that her lack of competence is highly likely to persist. In the circumstances, it considered that public confidence in the profession and the regulatory process would be seriously harmed if the Registrant were allowed to remain in practice during the appeal period.
 
Interim Order:
 
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.

Hearing History

History of Hearings for Mrs Jacqueline Daley

Date Panel Hearing type Outcomes / Status
02/12/2019 Conduct and Competence Committee Final Hearing Suspended