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:
• 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.
• 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.