Mrs Karen Phoenix

Preliminary Matters

Service of Notice

1.The notice of this Hearing was sent to the Registrant at her address as it appeared on the register on 7 October 2019. The notice contained the date, time and venue of today’s hearing.

2. The Panel accepted the advice of the Legal Assessor, and is satisfied that notice of today’s hearing has been served in accordance with Rule 6(1) of the Conduct and Competence Committee Rules 2003 (the “Rules”).

Proceeding in the absence of the Registrant

3. The Panel then went on to consider whether to proceed in the absence of the Registrant pursuant to Rule 11 of the Rules. In doing so, it considered the submissions of Mr Olphert on behalf of the HCPC.

4. Mr Olphert submitted that the HCPTS has taken all reasonable steps to serve the notice on the Registrant. Mr Olphert further submitted that the Registrant has had a limited engagement with the HCPC and with the HCPTS, and that an adjournment would serve no useful purpose. The Panel noted the email sent on 29 November 2019 on the Registrant’s behalf by her legal representatives, Messrs Thompsons Solicitors. In that email, Messrs Thompsons Solicitors indicated that the Registrant would not be attending and also included a Notice to Admit Facts, signed by the Registrant on 20 November 2019. Mr Olphert reminded the Panel that there was a public interest in this matter being dealt with expeditiously.

5. The Panel accepted the advice of the Legal Assessor. He advised that, if the Panel is satisfied that all reasonable efforts have been made to notify the Registrant of the hearing, then the Panel had the discretion to proceed in the absence of the Registrant. He cautioned the Panel that its discretion should be exercised with care and caution as set out in the case of R v Jones [2002] UKHL 5.

6. The Legal Assessor also referred the Panel to the case of GMC v Adeogba and Visvardis [2016] EWCA Civ 162 and advised the Panel that the Adeogba case reminded the Panel that its primary objective is the protection of the public and of the public interest. In that regard, the case of Adeogba was clear that “where there is good reason not to proceed, the case should be adjourned; where there is not, however, it is only right that it should proceed”.

7. It was clear, from the principles derived from case law, that the Panel was required to ensure that fairness and justice were maintained when deciding whether or not to proceed in a Registrant’s absence.

8. The Panel was satisfied that all reasonable efforts had been made by the HCPTS to notify the Registrant of the hearing and was satisfied that she knew about it.

9. In deciding whether to exercise its discretion to proceed in the absence of the Registrant, the Panel took into consideration the HCPTS practice note entitled ‘Proceeding in the Absence of a Registrant’. The Panel weighed its responsibility for public protection and the expeditious disposal of the case with the Registrant’s right to a fair hearing.

10. The Panel was satisfied that the Registrant had voluntarily absented herself from the hearing as is indicated in the email from Messrs Thompsons Solicitors. There is a distinction between a case where the Registrant is clearly aware of the hearing date, and one where there has been no response from the Registrant. Implicit in the statement in the email that the Registrant “is aware that the hearing may proceed in her absence” is the expectation that the Panel will do so. The Panel determined that it was unlikely that an adjournment would result in the Registrant’s attendance at a later date, in the light of the contents of the email from Messrs Thompsons Solicitors that indicate that the Registrant has “resigned/retired from the profession…”. Having weighed the public interest for expedition in cases against the Registrant’s own interest, the Panel decided to proceed in the Registrant’s absence.

Amendment of Allegation

11. Mr Olphert, on behalf of the HCPC, applied to amend the Allegation. He submitted that the amendments sought were consistent with the evidence before the Investigating Committee, and that they served to clarify the Allegation by giving further and better particulars.

12. The Panel accepted the advice of the Legal Assessor, who advised that it was open to the Panel to amend the Allegation, provided the Panel was satisfied that no injustice would be caused by the amendments. The Panel considered that the amendments sought did not change the substance of the Allegation. The amendments did clarify the Allegation and would not cause injustice, as it is always preferable that allegations are as clear as possible so that registrants are clear what is alleged against them in order for them to respond. The Panel therefore allowed the amendments to be made. The amended Allegation is as set out above and the original Allegation is appended to this decision.

Proceeding in private

13. The Panel heard that matters relating to the Registrant’s health and private life, and possibly that of other people, were likely to be discussed as part of this hearing. Mr Olphert submitted that it was appropriate that parts of the hearing be held in private where such matters were to be discussed. The Panel accepted the Legal Assessor’s advice and it noted Rule 10(1)(a) of the Health and Care Professions Council (Conduct and Competence Committee) Procedure Rules 2003 (“Procedural Rules”) whereby matters pertaining to the health and private life of the Registrant, the complainant, any person giving evidence or of any patient or person should be heard in Private. The Panel agreed the parts of the hearing, where reference was to be made to the health and private life of the Registrant, or any other person, should be heard in private.

Background:

14. Mrs Karen Phoenix (the ‘Registrant’) was employed at Betsi Cadwaladr University Health Board (‘the Health Board’) as a Band 7 Occupational Therapist. The Registrant worked for this Health Board from 1988 in clinical and latterly in management roles until she left.

15. RW, Lead Occupational Therapist within the Physical Services Department, was the Registrant’s line manager from 2011 until the Registrant was suspended from work.

16. During her time at the Health Board, the Registrant had several long-term absences due to sickness including between July 2015 and January 2016. During a period of sickness between 18 May 2016 and 13 June 2016, various issues came to light.

17. On 19 May 2016, it was necessary for SS, Occupational Therapist, to attend the Registrant’s home to collect work-related resources, specifically minutes for a capability meeting.

18. On 24 May 2016, SS attended Holywell Community Hospital, where she found 35 patient referrals for which the triage process had not been completed, this included referrals that required urgent action. The Registrant was solely responsible for completing the triage process.

19. Following a query on 27 May 2016 by the relative of a patient, it was discovered that the Registrant was in possession of that patient’s records. On attending the address to collect those records, SS was handed a further 10 sets. SS reported her concern to RW, that the Registrant was keeping patient records at her home address.

20. At the Health Board, if a member of staff is on long-term leave, it is standard practise to conduct an audit of their clinical notes. During the course of the audit into the Registrant’s clinical notes, further concerns came to light regarding the adequacy and omissions of the Registrant’s case records.

21. A further audit was carried out on 27 May 2016 by SS, RW and her Line Manager, Clinical Lead, Operations and Assistant Area Director of Therapy Services, which highlighted cases with outstanding clinical actions that the Registrant had failed to address. Whilst reviewing the Registrant’s caseload, there was evidence on one case that a DATIX incident report should have been completed and was not.

22. The family of a patient raised a formal concern that on 11 March 2016, the Registrant provided a chair for the patient that was not suitable for the patient’s needs.

23. On 22 June 2016, CS, Area Head of Speech and Language Therapy, was formally appointed as Investigating Officer tasked with investigating the concerns relating to the Registrant’s practice.

24. The Registrant’s employer referred the matter to the HCPC on 30 June 2016.

Decision on Facts:

25. The Panel considered all the evidence in this case together with the submissions made by Mr Olphert on behalf of the HCPC.

26. The Panel accepted the advice of the Legal Assessor who reminded the Panel that the burden of proof rests with the HCPC, and that the Registrant need not disprove anything. The Legal Assessor also reminded the Panel that the standard of proof is the civil standard, namely the balance of probabilities.

27. The Panel heard oral evidence from the following witnesses on behalf of the HCPC:

• CS, Area Head of Speech and Language Therapy at the Health Board, and who investigated these matters.

• RW, Head of Occupational Therapy at the Health Board and who was the Registrant’s line manager from 2011 until the Registrant left the Health Board.

• SS, who was at the material time a Band 7 Lead Occupational Therapist at the Health Board and who was also a peer of the Registrant.

28. The Panel found all the witnesses to be honest and credible. Their evidence was evenly balanced, clear, cogent and consistent with other evidence in the case. The Panel found their individual perspectives very helpful in coming to its decision.

29. The Panel also had before it the Notice of Admissions submitted by the legal representatives of the Registrant indicating that she accepted all the particulars of the amended Allegation, as indicated to them in the Notice to Amend the Allegation. The Panel was aware that Messrs Thompsons Solicitors are an experienced and well known regulatory firm, and therefore the Panel was able to place significant weight upon the admissions made by the Registrant.

30. The Panel also received a bundle of evidence which included:

• The investigation report of CS, and the attendant interviews and documentation;

• Relevant parts of the patients’ records which form part of the Allegation against the Registrant; and

• Other documentary evidence relevant to this matter.

31. The Panel carefully considered Particulars 1 to 6 of the Allegation in turn and considered the evidence in relation to each of those paragraphs. The Panel was aware that the burden of proof was on the HCPC and the Panel was satisfied that Particulars 1 to 6 are proved on the balance of probabilities in relation to all the patients set out in the schedules A-D with the exception of two patients:

(a) Patient 31 on Schedule A in relation to Particular 1 – the evidence of the witnesses were that they themselves were uncertain that the Registrant had sufficient time to carry out the triage in relation to Patient 31; and

(b) Patient 70 on Schedule D in relation to Particular 4 – RW identified an important typographical error in her statement before adopting it as her evidence. She told the Panel that paragraph 155 of her statement was missing the word “no” in the last sentence such that it should have read

“I do recall that CS was the one who identified that there were no issues in relation to Karen Phoenix’s planned follow up actions not being completed for Patient 70.”

That correction changed that statement from an incriminating statement to an exculpatory one. There was no other evidence in relation to Patient 70 to prove this part of Particular 4.

32. The Panel was aware that the above findings do not prevent it from finding Particular 1 to 6 proved.

Decision on Grounds:

33. The Panel then went on to consider whether the factual particulars found proved amounted to misconduct and/or lack of competence. The Panel heard the submissions of Mr Olphert on behalf of the HCPC.

34. Mr Olphert submitted that the Registrant’s actions breached the HCPC’s standards of conduct, performance and ethics (2016).

35. Mr Olphert further submitted that the Registrant had also breached the HCPC’s standards of proficiency for Occupational Therapists (2013).

36. Mr Olphert referred the Panel to the decisions in the following cases:

a) Calhaem v GMC [2007] EWHC 2606 (Admin)
b) Roylance v GMC (2000) 1 AC 311
c) Andrew Francis Holton v General Medical Council [2006] EWHC 2960

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

38. The Panel was aware that misconduct is “a word of general effect, involving some act or omission, which falls short of what would be proper in the circumstances.” It is also aware that it was stressed that Misconduct is qualified by the word “serious”.

39. The Panel was also aware that not every instance of falling short of what would be proper in the circumstances, and not every breach of the HCPC standards would be sufficiently serious such as to amount to misconduct in this context. Therefore, the Panel has had careful regard to the context and circumstances of the matters found proved. The Panel considered each of the factual particulars in the light of the following circumstances demonstrated by the evidence:

(a) The Registrant was a Band 7 Occupational Therapist with over 30 years of experience with an unblemished career.

(b) These matters occurred over a period of several months from March 2016 to May 2016, and involved a large number of patients.

(c) The Registrant’s failings involve fundamental aspects of patient care, such as information security, record keeping, acting promptly and working with others to ensure that the safety and interests of her patients are paramount.

40. SS told the Panel that the Registrant was clearly an experienced Occupational Therapist but unfortunately, her practice had not evolved with the times. SS told the Panel that she had concerns that the Registrant’s practice was out of date. This was in keeping with what RW had told the Panel in her evidence.

41. The Panel noted that there were health and personal issues that affected the Registrant’s practice. The Registrant had been referred to Occupational Health on several occasions.

42. However, RW also told the Panel that after an extended period of leave, between July 2015 and January 2016 the Registrant met with RW to discuss her return to work. It was the Registrant herself who had identified that she was finding it hard to maintain her work life balance and RW discussed the options of reducing the Registrant’s hours or introducing flexible working for the Registrant at a lower grade, thus reducing her level of responsibilities. RW told the Panel that the Registrant did consider these options but then turned them down for financial reasons.

43. The Panel determined that the Registrant’s health and personal issues were not so significant as to affect her understanding of her basic duties as an Occupational Therapist. Her conduct was so serious that it amounted to Misconduct.

44. There was also evidence that when her misconduct was discovered, the Registrant sought to place the blame on others. She initially did not accept that she had sole responsibility for the triage of out-patients and sought to apportion responsibility to SS when it was not so.

45. The Panel determined that the Registrant’s actions breached the following HCPC’s standards of conduct, performance and ethics whereby registrants are expected to:

• Promote and protect the interests of service users and carers
• Communicate appropriately and effectively
• Work within the limits of their knowledge and skills
• Manage risk
• Report concerns about safety
• Be open when things go wrong
• Keep records of your work

46. The Particulars found proved are sufficient for each of them to amount to serious misconduct in the circumstances. The Registrant did not work in partnership with the patients set out in the schedules to this Allegation. She failed to share relevant information with her colleagues involved in the care, treatment or other services provided to the above-mentioned patients.

47. The Registrant failed to work within the limits of her abilities. The evidence before the Panel was that she failed to keep her knowledge and skills up-to-date and relevant to her scope of practice. She also failed to take all reasonable steps to reduce the risk of harm to the above-mentioned patients. Her actions had the potential to put the health or safety of those patients at unacceptable risk.

48. The Panel recognised that there were health issues that affected the Registrant’s ability to practise as an Occupational Therapist at Band 7 level. However, a Registrant is expected to make changes to how they practise, or stop practising, if their physical or mental health may affect their performance or judgement, or put others at risk for any other reason. The Registrant failed to do so and by doing so caused delay to her patients’ care and also put them at risk of harm.

49. Particular 6 of the Allegation relates to the Registrant identifying a need or risk to a patient and subsequently failing to act. When the Registrant identified a need or risk to a patient, she was expected to act properly and promptly, which she failed to do.

50. The Allegation also relates to failures by the Registrant to maintain accurate records. She was expected to keep full, clear, and accurate records for the patients she treated or provided other services to. Such records are to be updated promptly, or completed as soon as possible after providing care in treatment. The Registrant failed to do so in relation to the patients related to Particulars 2, 3 and 4 of the Allegation.

51. In the light of the above, the Panel determined that the facts found proved amounted to the statutory ground of Misconduct.

Decision on Impairment:

52. The Panel then went on to consider, whether the Registrant’s fitness to practise is currently impaired by reason of her misconduct. The Panel heard the submissions of Mr Olphert and it accepted the advice of the Legal Assessor.

53. The Panel reminded itself of the approach set out in the case of CHRE v NMC and Grant (2011) EWHC 927 (Admin), and that there was a personal and public component when considering whether the Registrant’s fitness to practise was currently impaired.

54. For this purpose, the Panel adopted the approach formulated by Dame Janet Smith in her fifth report of the Shipman inquiry by asking itself the following questions:

“Do our findings of fact in respect of the Registrant’s misconduct show that her fitness to practise is impaired in the sense that she:

a) has in the past acted and/or is liable in the future to act so as to put service users at unwarranted risk of harm; and/or
b) has in the past brought and/or is liable in the future to bring the Occupational Therapy profession into disrepute; and/or
c) has in the past breached and/or is liable in the future to breach one of the fundamental tenets of the profession?”

55. The Panel determined that the answers to all the above questions were in the affirmative in relation to past, and future possible conduct. In coming to its decision it took into account the following factors:

(a) There is very limited evidence of insight on the part of the Registrant. This is a matter of misconduct, and there can only be very limited remediation without insight. There has been no evidence of any action taken by the Registrant to remediate her misconduct. Therefore there is a real risk of repetition on the part of the Registrant. The Panel took into account the Registrant’s admissions. However, they only go so far as to demonstrate that she has insight that what had occurred was wrong. Her admissions did not address her insight into nor assist the Panel in determining why she had acted in that manner;
(b) There was no evidence that the Registrant appreciated the impact her conduct has upon the patients involved, her colleagues, the reputation of her employer or her profession. The record of the interview carried out by CS with the Registrant is striking in that the Registrant did not appear to recognise the impact of her conduct on the above, she appeared to be focussing primarily on her personal issues.
(c) There was very limited evidence of remorse on the part of the Registrant for what had occurred.
(d) The Registrant has not attended today to tell the Panel what, if any, insight she has gained into her actions.

56. The Panel noted that the Registrant has indicated that she has retired from the profession, which limits some avenues of remediation. However, that did not prevent her from providing a written reflection upon her actions and how they had arisen, or how her actions impacted upon her patients, her colleagues and the reputation of her profession and of her employer.

57. In the absence of any substantive information from the Registrant about her insight and remediation, the Panel had no alternative to determine that there was a real risk of a repetition of the Registrant’s misconduct were she to change her mind and return to the profession. One very striking feature of this case was that the Registrant’s misconduct occurred despite the fact that she was already working at a much-reduced level of responsibility for an Occupational Therapist of that grade. She did not have management responsibilities, carried a much lighter caseload compared to SS, and had far less non-managerial responsibility than SS who was her peer.

58. The Panel also determined that the Registrant’s misconduct was such that the need to uphold professional standards and public confidence in the profession would be undermined if a finding of impairment were not made in these circumstances.

59. Therefore, Panel determined that the Registrant’s fitness to practise is currently impaired on both personal and public interest considerations.

Decision on Sanction:

60. The Panel heard the submission of Mr Olphert with regard to sanction.

61. The Panel accepted the advice of the Legal Assessor. The Panel had regard to all the evidence presented, and to the Council’s Sanctions Policy. The Panel reminded itself that a sanction is not to be punitive although it may have a punitive effect. The Panel bore in mind the principles of fairness and proportionality when determining what the appropriate sanction in this case should be.

62. The Panel also bore in mind that its over-arching duty is:

(a) to protect, promote and maintain the health, safety and wellbeing of the public;
(b) to promote and maintain public confidence in the Occupational Therapy profession;
(c) to promote and maintain proper professional standards and conduct for members of the Occupational Therapy profession;

63. The Panel considered the aggravating factors in this case to be:

(a) The Registrant has not demonstrated any substantive insight or remorse. She has not demonstrated an appreciation of the impact her actions had on her patients.

(b) The Registrant was in a position of trust and her misconduct was a serious breach of trust. Her patients relied upon her to act in their best interests and in accordance with what she told them she was going to do.

(c) The Registrant’s misconduct could have resulted in vulnerable people being at risk of harm.

(d) The Registrant’s misconduct was not isolated and involved a large number of patients, over a significant period of three months.

64. The Panel considered the following to be mitigating features in this case:

a) The Registrant is of good character.
b) Prior to these matters, the Registrant had an unblemished career as an Occupational Therapist for over 30 years.
c) The evidence of RW that she did not believe the Registrant’s actions to be malicious.

65. In considering the matter of sanction, the Panel started with the least restrictive moving upwards.

66. The Panel first considered taking no action but concluded that, given the seriousness of the Registrant’s misconduct, this would be wholly inappropriate.

67. The Panel then considered whether to make a caution order. The Panel was mindful of its finding that the Registrant was likely to repeat her misconduct. Furthermore, the Registrant’s misconduct cannot be characterised as isolated, limited or relatively minor in nature. These matters are too serious for a caution order to be considered appropriate.

68. The Panel next considered the imposition of a Conditions of Practice Order. The Panel has found that the Registrant has not demonstrated insight into her misconduct. This was a case where the Registrant’s clinical skills are also in question, and the misconduct is as a result of those shortcomings. These are matters involving attitudinal issues that cannot be addressed by the imposition of conditions of practice without there being insight on the part of the Registrant coupled with a demonstrable intent to comply with conditions of practice, if they were imposed. In the circumstances, the Panel could not be satisfied that the Registrant would not pose a risk of harm by being in restricted practice.

69. Taking into account all of the above, the Panel concluded that conditions could not be formulated which would adequately address the risk posed by the Registrant, and in doing so protect patients, colleagues and the public during the period they are in force. In the circumstances, the public interest would also make Conditions of Practice an unsuitable sanction in this case.

70. The Panel went on to consider whether a period of suspension would be appropriate in this case. A period of suspension would be appropriate if the Registrant had demonstrated insight into her misconduct such that there was not a significant risk of repetition, and also if there was no evidence of deep seated-personality or attitudinal problems.

71. Unfortunately, that is not the case here. The Registrant had limited engagement with the process, and has not provided evidence of insight or remorse. The Registrant has breached multiple fundamental tenets of the profession and the Panel has determined that there is a significant risk of repetition of her misconduct.

72. In that light, the Panel determined that even the maximum period of suspension would not serve to protect the public in the long term or to protect the wider public interest.

73. Therefore, the Panel was left with the conclusion that the only appropriate and proportionate response to protect the public and the wider public interest in these circumstances is to make a Striking-Off Order.

74. In coming to this determination, the Panel took into account the fact that the Registrant has indicated that she has retired from the profession and had sought voluntary removal from the HCPC register. The Panel recognised that a Striking-Off Order would be a bitter end to what has been a long and unblemished career. The Panel asked itself whether a Striking-Off Order was truly the only means of protecting patients, and declaring and upholding proper standards of conduct and behaviour and maintaining public confidence in the profession. The Panel determined that a Striking-Off Order was not the only means of protecting patients in this case. That could be achieved by a Suspension Order, which would allow the Registrant to seek voluntary removal from the HCPC register.

75. However, in light of the seriousness of the Registrant’s misconduct and the absence of remorse or insight, coupled with the Registrant’s lack of engagement with this hearing, a Suspension Order followed by voluntary removal would not suffice to declare and uphold proper standards of behaviour and conduct and to maintain public confidence in the profession in these circumstances.

76. Therefore the Panel determined that a Striking-Off Order was the only appropriate and proportionate sanction to be imposed in this case.

Order: The Registrar is directed to strike the name of Mrs Karen Phoenix from the Occupational Therapy part of the Register.

Interim Suspension Order:

The Panel decided that it was appropriate to consider the interim order application in the absence of the Registrant. In reaching this conclusion the Panel took into account that the content of the Notice of Hearing sent to the Registrant included the following words, under the heading Interim Orders:

“Please note that if the Panel finds the case against you is well founded and imposes a sanction which removes, suspends or restricts your right to practise, it may also impose an interim order on you (under Article 31 of the Health Professions Order 2001). An interim order suspends or restricts a registrant’s right to practise with immediate effect.”

The Panel was satisfied that the Registrant is aware that an interim order application was a possible outcome at this Hearing. The Panel remained satisfied that the Registrant had waived her right to be present at the Hearing by her failure to engage with the hearing. The Panel could see no reason to adjourn the Hearing in order to allow the Registrant to attend on a later date because there was no indication that she would attend on any other occasion. The Panel took into account the fact that it had identified there to be a continuing risk to the public if the Registrant were allowed to practise without restriction and decided it was clearly in the public interest to consider the interim order application in the absence of the Registrant.

Having heard submissions from Mr Olphert on behalf of the HCPC and having taken advice from the Legal Assessor, the Panel makes an Interim Suspension Order, for a period of 18 months under Article 31(2) of the Health Professions Order 2001, the same being necessary to protect members of the public and being otherwise in the public interest.

This order will expire (if no appeal is made against the Panel’s decision and Order) upon the expiry of the period during which such an appeal could be made; (if an appeal is made against the Panel’s decision and Order) the final determination of that appeal, subject to a maximum period of 18 months.
 

History of Hearings for Mrs Karen Phoenix